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A Copycat Canadian Privacy Suit Against Gmail

John Levine

In July, several people filed attempted class action suits against Google, on the peculiar theory that Gmail was spying on its own users' mail. One of the suits was in Federal court, the other two in California state court, but the complaints were nearly identical so we assume that they're coordinated.

Now we have a similar suit filed in provincial court in British Columbia, Canada.

The argument is very much the same: the aggrieved parties have no business relationship with Google, send mail to Gmail users, and are shocked and horrified that Google shows its users ads based on what's in the messages, which mean that Google must be reading its users' mail. Since this is a Canadian suit, it's based on the B.C. Privacy Act.

Although Canada has much stronger privacy laws than the U.S., this suit appears to me (a non-lawyer and non-Canadian) just as absurd as the U.S. suits, because the argument that a mail provider isn't allowed to look at its users' mail is still ridiculous. The B.C. privacy law says:

(2) An act or conduct is not a violation of privacy if any of the following applies:

(a) it is consented to by some person entitled to consent;

It seems pretty self-evident to me that Gmail users are allowed to consent to Gmail looking at their mail, and although Gmail's Terms & Privacy page is remarkably short on details about Gmail (as opposed to Google in general), there's enough in there to make it clear that Google can pick ads based on what the user is looking at.

Canadian courts, unlike U.S. courts, generally have a loser pays rule which means that there is much less incentive for a defendant to settle when a plaintiff has a weak case. Sometimes the lead plaintiff, the person who's supposed to be a typical representative of the class of plaintiffs, is personally on the hook for the costs, although that seems uncommon in B.C., Google has every incentive to squash this case like a bug, so the main question is how far it gets before that happens.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: Email, Law, Privacy

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