On December 22, 2022, the Quebec Court of Appeal decided to allow a class action to proceed where there was an allegation that Facebook allowed for advertisers to discriminate against Quebec users on the prohibited grounds of age, race and gender in relation to advertising for employment and housing.
What happened?
It all started in 2013 with a Facebook user in Quebec, Ms. Beaulieu, who was in her 60s. She unquestionably signed up and gave her personal information. She was searching for a job—but she never actually saw ads for employment when she was on Facebook. She believed that the reason that she never saw any relevant ads was because of age-related filters that were embedded in Facebook’s advertising algorithm.
Consequentially, she launched a class action in 2019 and alleged that Facebook discriminated against her (and the other class members) based on the prohibited grounds of age, race and gender in relation to advertising for employment and housing.
In particular, Ms. Beaulieu argued that she was an older female worker and she was precluded from receiving employment advertisements on Facebook that excluded her based on her age and gender. As a result, the situation made her feel insulted, humiliated and hurt; also, her dignity was attacked, and this affected her self-esteem and self-confidence.
What did the Superior Court of Quebec decide?
The Superior Court decided in 2021 that this class action was not going to proceed.
The court first noted that Facebook’s advertisers placed millions of ads for all types of products and services, and the advertisers used self-serve tools to create ads and select the audience, timing, objective and bid strategy for their ads. And Facebook permitted prospective advertisers to target their advertisements to specific profiles of individuals through the creation of what it called “Custom Audiences” (advertisers could select the personal characteristics they wanted to target in a user audience when placing an ad) and “Lookalike Audiences” (ads based on either the business’s Custom Audience(s), or the profiles of users that liked the party’s page).
The judge also noted that although targeted advertising was generally not considered discriminatory, the Quebec Charter (la Charte Québécoise) prohibited discrimination on the basis of race, sex, civil status, age, ethnic or national origin, or social condition in offers of employment or of services that were generally available to the public, such as housing.
Furthermore, Facebook’s own advertising policies prohibited discrimination based on personal attributes such as race, ethnicity, colour, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition—and advertisers had to agree to the terms.
A sample ad read, “Apartment For rent: Indigenous People Need Not Apply,” and this led to Facebook making some changes in 2019 because there were several lawsuits by many advocacy groups in the United States. These changes were made in Canada with regards to housing, credit and employment.
Essentially, Ms. Beaulieu alleged that Facebook failed to disapprove and prevent publication of advertisements that discriminated against prospective tenants or employees on multiple prohibited grounds.
But the court refused to allow the matter to proceed. Facebook argued that no class could be identified, and the court agreed. That is, the proposed class definition was too broad since the class proposed (all persons whose personal data was provided before the data breach of December 11, 2017).
As such, the class definition made it difficult if not impossible for users to know at the outset whether or not they were included in the class, because of their ignorance of their personal exclusion on the basis of discrimination; accordingly, they were incapable of exercising their option to opt out of the class. The definition would have to include all Facebook users in Quebec, possibly several million members who would have to determine if they were or were not excluded from receiving advertisements they did not receive, as a result of their protected characteristics. This determination was impossible at this stage.
Therefore, the court dismissed the application. Ms. Beaulieu appealed.
What did the Quebec Court of Appeal decide?
The Court of Appeal decided (en Français) to allow the class action to proceed.
More specifically, the court pointed out that there were questions regarding whether Facebook could in fact intervene and prevent the publication of prohibited ads on the platform. The court also noted that the appropriate time to weigh defenses against allegations was at trial. It was then that the court would have to decide that:
- The members of the class were excluded from viewing advertisements for employment or housing opportunities;
- The members were excluded on the basis of their protected characteristics; and
- In consequence, the members’ rights under the Quebec Charter were breached
Most importantly, the court highlighted the following:
- The burden of showing the class to be of the proper size was generally said not to be a heavy one: there had to be a rational link between the common questions and the class as identified, and the class could be redefined at later stages of the process.
- Courts had an understanding of what constituted a proper definition of the class: the definition had to be founded on objective criteria with a rational foundation; the definition could not be circular or imprecise; and it could not be based on criteria that were dependent on the outcome of the action on the merits.
- An overly strict approach to the definition could serve to undermine the liberal approach that the Supreme Court of Canada had advised for interpreting the requirements for authorization of class actions: in fact, the court noted that it was inappropriate to narrow the class in a consumer class action where common questions among members were judged to be sufficient
On the issue of description of the class, the court stated:
« En somme, la description du groupe (à laquelle je proposerai plus loin des modifications mineures, touchant la formulation de la proposition que fait l’appelante) suffit à protéger le droit d’exclusion des membres et à leur permettre de prendre à cet égard une décision suffisamment éclairée »
The description of the class was adequate (it could be tightened later), and the common questions did not pose a problem. The matter could proceed.
What can we take from this case?
It is important for human rights laws to evolve with social realities, and the process of making slow, incremental changes over time helps the law tackle more pressing technological issues such as this. The Court of Appeal also noted that the case raised a number of questions about new forms of discrimination in the digital world, whether social media platforms could be held responsible for third-party ads they posted, and whether platforms were able to control the ads on their platforms. The time to answer these questions was at trial.
Interestingly, the topic of microtargeted job ads is not that new—recently, a CBC News Investigation revealed that nearly 100 employers have posted microtargeted job ads on Facebook, which experts said could violate Canadian human rights law (either federal or provincial). For more information regarding microtargeted ads, view the CBC Investigation.
Please note that any views expressed in this article are solely the views of the author.
- Facebook class action goes ahead - March 17, 2023
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