Federal Court judge strikes elements of key-OPC affidavit in Facebook case

A federal court judge has ruled on motions from both sides of a court battle between Facebook Inc. and the Office of the Privacy Commissioner (OPC) stemming from a long-running dispute between the two. Federal Court Associate Chief Justice Jocelyne Gagné decided Tuesday to allow -- in part -- a motion from Facebook made last year, requesting that the court throw out significant chunks of an affidavit from the OPC’s director of compliance for the Personal Information Protection and Electronic Documents Act (PIPEDA) Michael Maguire. The company claims it contains hearsay, arguments, legal conclusions, opinions, and foreign materials it argued are inadmissible. In requesting the affidavit be struck, Facebook flagged over 100 paragraphs from the 162-page affidavit, and 32 of 82 exhibits filed in support of it. While Gagné did find some paragraphs contained information that qualifies as inadmissible hearsay evidence, she did not agree that every single one of the paragraphs flagged by Facebook should be struck. One such example comes from the beginning of Maguire’s affidavit, from which Gagné found certain paragraphs “contain a simple summary of PIPEDA and can be admitted for a background of the legislative regime, something with which Mr. Maguire is familiar given his position.” Facebook had argued the paragraphs contain opinions, arguments, legal conclusion, and loaded language. Other accusations from the company include allegations of potential prejudicial hearsay and evidence in certain instances. Gagné made similar findings on other portions of the affidavit, such that information they contain “summarizes the background of the complaint,” in the case of media reports that were included, summarizes evidence found elsewhere in the record, or includes other relevant information. The court battle was born out of a fight between Facebook and the OPC which dates back to April 2019, when the OPC said it would be taking the company to court to force it to abide by what it says are Facebook’s obligations under Canadian privacy law. Privacy 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 2020, 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. In her Tuesday decision, Gagné did agree with Facebook that some of the submitted paragraphs referring to news articles -- which the OPC said were not submitted for “the truth of their contents,” but rather to “show how public reports on Facebook’s data handling practices differed from formal policies, or for background such as timing” -- should be struck. Gagné wrote that Maguire “clearly places stock” on the content of certain articles and so she agreed with Facebook that they are not reliable, therefore striking them as inadmissible except for an exhibit contained in one that is a statement made by Facebook itself. As for other media reports cited by Facebook in its motion, Gagné wrote that a related paragraph “summarizes the background of the complaint, which includes Cambridge Analytica’s role and conduct.” “The paragraph merely summarizes what the media ‘disclosed’ and what the complainant ‘noted’ -- none of this assumes the truth of either media reports or the complaint,” Gagné wrote. The judge has also chosen to keep some paragraphs referring to testimony from multiple players, including Christopher Wylie, the former data consultant for Cambridge Analytica turned whistleblower. “It is true that Facebook will not be able to cross-examine Mr. Wylie but I do not believe the prejudice in admitting this transcript outweighs the probative value – and for what it is worth, the Commissioner did not examine him either, nor did he direct the evidence,” Gagné wrote. Facebook also moved to strike more than 60 paragraphs from the end of Maguire’s affidavit which “narrate the OPC’s investigation into Facebook, Facebook practices that were under investigation, exchanges between Facebook and the OPC, and the OPC’s position,” the judge wrote. “In my view, these allegations raise very little arguable issues. The OPC’s investigation, Facebook’s activities under investigation as well as Facebook’s responses to the OPC’s investigation all fall within the knowledge of Mr. Maguire, who would have overseen the investigation in his capacity as the Director of the PIPEDA Compliance Directorate,” Gagné wrote. “I acknowledge that within paragraphs 90-159, there are some paragraphs that read less like a narrative summary of the OPC’s investigation and more like the OPC’s position. However, in my view, providing a narrative summary of the OPC’s investigation will include a summary of what the OPC concluded/determined regarding Facebook’s activities. There is therefore an overlap between background and the merits of the application,” she wrote. The judge found that, ultimately, Maguire’s opinion blends into his narrative summary, but “it is not distracting or significant, and the hearing judge will eventually weigh it.” However, one paragraph -- paragraph 97 -- has been ruled inadmissible as it is speculative in relies upon impermissible hearsay. Elsewhere in her decision, the judge said she agreed with Facebook's contention that it is not proper for Maguire to refer to reports “from purported experts” without giving Facebook the opportunity to test the contents, “merely on the basis that the articles demonstrate the existence of a controversy.” She said expert opinion can come from a properly qualified expert who can be cross-examined. Additionally, Gagné is striking certain research papers as “this is not the proper method of adducing academic articles and it prejudices Facebook by giving Facebook the inability to test the contents of the articles.” In the same decision Tuesday, Gagné dismissed a motion from the OPC asking that the court strike Facebook’s whole application for judicial review of its decision to conduct an investigation on the basis that it is out of time, having been field nearly a year after the OPC issued its report, and that it has an alternative to judicial review. “The Commissioner has not convinced me that there was a ‘show stopper’ or a ‘knockout punch’ – an obvious, fatal flaw striking at the root of this Court’s power to entertain the Facebook Application,” Gagné wrote. “Both arguments raised by the Commissioner in support of his motion are better left to the judge hearing the Facebook Application.” Gagné also declined to award costs on either motion, “considering that both parties have been mainly unsuccessful.” -- Reporting by Hannah Daley at hdaley@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Federal Court judge strikes elements of key-OPC affidavit in Facebook case

Broadcast | June 16, 2021

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Federal Court judge strikes elements of key-OPC affidavit in Facebook case

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