LinkedIn disputes privacy breach claims

Professional networking platform LinkedIn will have its applications for a summary trial heard in the Supreme Court of British Columbia related to two separate proposed class-action suits against it over alleged privacy violations. In the first instance, LinkedIn -- which is owned by Microsoft Corp. -- is accused of wrongly running personalized or so-called “dynamic ads” to be seen by its users that are individualized to each member, according to an April 22 decision by Justice Amy Francis on the company’s summary trial request. According to the notice of claim against the company, LinkedIn was using members’ profile photo, name, and job function to create customized ads. These dynamic ads are a default setting for users, the notice claims, and are activated without their “express consent.” The plaintiff, Robert Andrew Cronk -- who is claiming damages on behalf of himself and potential class members -- alleges the ads breach the provincial privacy acts of British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador. But LinkedIn believes that rather than heading right into a certification hearing on the suit, a summary trial “has the potential to dispose of the entire proceeding.” According to the judge’s April 22 decision, LinkedIn plans to raise the question of whether or not it’s a privacy breach when someone is shown their own name or photo, whether its “Advertising Preferences, User Agreement, and Privacy Policy” amounts to express consent for the use of a member’s own name and photograph in a dynamic ad shown only to them, and whether the court has jurisdiction to deal with the privacy breach claims related to the other provinces, and more. Justice Francis decided that “it is appropriate in this case” for LinkedIn’s summary trial application and the certification application to be heard at the same time, rather than having it take place before. “The issues raised in this claim are straightforward and a summary trial has the potential to conclusively determine them at an early stage,” said Francis in the decision. “However, I do not have the summary trial application materials before me and there remains some possibility that the issues raised at the summary trial application, particularly issues surrounding the factual question of consent, could be more complex than they appear at this stage.” If that were to be the case, Francis wrote that “it may become apparent to the court that the matter is not suitable for summary determination. In order to ensure that such an application does not delay the process of certification, the application for certification may be heard at the same time.” Cronk was not in favour of the summary trial application, though, and argued that it would be unfair to allow it to go forward before certification. “This is primarily because of the absence of documentary or oral discovery that will have taken place in advance of the proposed summary trial and the prejudice to the plaintiff that would accrue if this proceeding were determined on its merits in advance of any discovery whatsoever,” Cronk argued. This was not the only summary trial application dealt with by Justice Francis involving LinkedIn on April 22. That same day, Francis determined that a separate summary trial application filed by LinkedIn will be dealt with before the certification hearing of a different proposed class action that claims the iOS version of the LinkedIn app “surreptitiously read and stored the contents of the clipboard on users’ iPhones and iPads, in breach of users’ privacy rights” The plaintiff in this case, Jonathan Schmidt, claims beta testers discovered through software testing in July 2020 that the iPhone and iPad versions of the app was continually accessing the clipboard -- the virtual space in a device’s memory used mostly for the purpose of holding data a user intends to paste elsewhere -- without users’ direction. In this case, the suit asserts causes of action under the Privacy Acts of British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador as well. While LinkedIn isn’t disputing that the app accessed the clipboard on users’ devices, it does claim that the company never read or stored members’ personal information. LinkedIn argued “the impugned access to clipboards by the App arose as a result of automatic consistency checks that existed to facilitate the use of the App,” that the consistency checks have been removed, and that when a clipboard was accessed by the app “no personal information was ever read by a live person at LinkedIn, stored in the iOS App or by LinkedIn, or transmitted to LinkedIn.” The company asked to bring forward a summary trial application because “this case is well suited to a pre-certification summary trial application because it raises discrete legal issues with minimal, or no, facts in dispute.” Meanwhile, Schmidt claims it would be unfair for the court to allow it because “a certification hearing is the presumptive first step in any class proceeding,” while contending he should be entitled to discovery before his claim is finally adjudicated. The company claims Schmidt’s allegations are “demonstrably untrue and based on speculation rather than fact.” It argues that the facts of the case will show that it did not collect, retain, or transmit personal information from the clipboards, so there cannot be a privacy breach. Justice Francis decided that if LinkedIn’s theory that Schmidt’s claim is based on mistaken facts “that are easily refuted, it simply does not make sense to put the parties to the expense of a certification hearing.” Therefore, the summary trial application will proceed ahead of the application for certification with dates currently set for September 2021. -- Reporting by Hannah Daley at hdaley@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

LinkedIn disputes privacy breach claims

Broadcast | April 29, 2021

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LinkedIn disputes privacy breach claims

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