A decision by the Quebec Superior Court to authorize a class action to go ahead against Apple Inc. may have set the bar to a new low for certification by not first sorting out whether downloading free apps deliberately breached the privacy of users.
In
Gad Albilia v. Apple Inc. the court authorized a class action alleging a deliberate breach of privacy by Apple. The class includes all “residents in Canada who have purchased or otherwise acquired an iPhone or iPad and who have downloaded free apps from the App Store” since Dec. 2008 to the present, “or any other group to be determined by the Court.”
Albilia, a computer engineer, claims Apple knowingly allowed third parties to design apps that when downloaded would provide personal information without first telling users and obtaining their consent.
According to Christine Carron, a partner with Norton Rose Fulbright Canada LLP, this is one of the first class actions based on an infringement of privacy rights outside the health sector.
In authorizing the action, the court noted if the allegations are proven to be correct, they would entitle class members to punitive damages, even in the absence of compensatory damages.
“The class description was just anyone who owned an i-device and had downloaded a free app. That would have caught any number of apps that could have actually obtained proper consent first,” says Carron. “Normally defining a class so broadly would be a bar to certification or at least the judge should have redefined the class, but instead he said the judge on the merits can adjust accordingly.”
The court had no list of apps in particular, no consents to look at, so in the absence of information that would have determined whether a class action was appropriate and whether description should be restricted the court went ahead an certified.
“I think this judgment is not consistent with some of the other judgments we have seen coming out of the court on the bar you need to meet for certification,” says Carron noting there are probably hundreds or thousands of apps caught by this class definition.
“By simply pushing forward the problem onto the shoulders of the judge on the merits is going to unnecessarily complicate life and make the trial a very difficult if not unworkable one for all the parties involved,” she adds. “It really is just postponing the inevitable.”
The appropriate time to deal with an overly-broad description of a class would be at certification, says Carron, so that those involved at trial know what facts are at issue and what the legal issues are that have to be met.
“I think it’s an unfortunate decision in that regard,” says Carron.
Counsel for Apple challenged the inclusion of all the apps in one class but the judge did not accept their arguments.
Albilia is also involved in other class actions and appears to have based his case involving Apple apps on a similar action taking place in the U.S.
While Albilia alleges he downloaded numerous apps including those identified in the American case that are reported to collect and transmit personal information, Albilia in fact does not have a cause of action himself.
In his decision, Justice Pierre Nollet wrote Albilia: “. . . does not allege having used those Apps and he has no personal knowledge as to which Apps actually collect and transmit such information. In fact, he relies almost entirely on the American case, the Wall Street Journal and the Eric Smith’s article to support his claim. This is all hearsay at this point. This does not disqualify the Petitioner as a representative. The Court must provide Petitioner and the Class Members the opportunity to prove their allegations. Because of the nature of Class Actions, the bar should not be set too high when it comes to approving a proper representative.”
