A BC man’s lawsuit against Facebook — in which he is seeking $50 million in damages because the social media giant failed to take down a “fraudulent page” — will be allowed to proceed, according to a court ruling.
The decision, published online this week, followed a hearing in June in which Facebook argued that the lawsuit should be dismissed because it was “scandalous, frivolous or offensive,” wrote Judge John J. Steeves.
THE CHEAT PAGE
The lawsuit was originally filed by Vancouver Island resident Timothy Craig Durkin in 2020. In March of that year, a summary included in the decision said Durkin was told there was a Facebook account using his identity “without his knowledge or consent.”
Since Durkin himself did not have an account on the platform, he asked friends and others to report the account online. Durkin, on the other hand, said he followed the process for non-Facebook users to report these types of accounts.
“On pressing the submit button, the claimant gets a popup saying ‘Your claim cannot be processed. There was a problem with this request. We are working to remove it as soon as possible,” court documents say.
For the next three months, Durkin said, he tried that option to no avail. He also claims that Facebook users who reported the account have not received a response.
On July 21, 2020, Durkin’s claim said he sent a couriered letter to the company’s managing director in Canada “describing the identity theft and requesting that the fraudster’s page be removed from the social media network,” the court heard . When the case was filed the following month, no response was received.
Durkin’s lawsuit alleges that the company “acted recklessly, negligently and willfully” by allowing the “fraudster’s account to be created without verifying the identity of the account holder and by allowing it to remain online despite requests to have it removed “.
“The relief sought in Plaintiff’s action includes aggravated and punitive damages in the amount of $50 million, removal of the impostor page and disclosure of the identity of the person or persons responsible for creating the impostor page,” Steeves wrote.
Defendants Meta Platforms Inc. (formerly Facebook Inc.) and Facebook Canada Ltd. have denied all claims and have not been tested in court.
FACEBOOK APPLIES TO DISPOSAL OF CASE
They filed a motion to dismiss the suit under Superior Court Civil Rule 9-5, which allows a court to dismiss a lawsuit in whole or in part on four grounds, including that the case has no prospect of success and that the lawsuit is an abuse of process.
Durkin claims that any problems with his lawsuit stem from the fact that he is not a lawyer and is representing himself.
Steeves eventually – but reservedly – sided with Durkin.
“I do not agree with the defendants that the claim does not disclose a reasonable allegation that it is unnecessary, scandalous, frivolous or vexatious, that it is likely to prejudice, disturb or delay due process or the hearing of the proceedings, or that it is otherwise an abuse of the process of the Court he wrote.
“The claim certainly has its difficulties, but at this stage I cannot conclude that it is doomed to fail.”
CLAIM SHOULD BE AMENDED
The judge found problems with the case, specifically that the four elements required for a negligence claim were not outlined, as well as the ways in which the company allegedly breached privacy laws. Durkin will be allowed to amend his claim to include these items.
“I think it is clear enough that the plaintiff is saying that the defendants acted negligently and in violation of privacy laws when they used their platform to post information on behalf of the plaintiff and allowed someone else to open an account in his name, all without his power of attorney,” the court said.
“Furthermore, he says the defendants were negligent in failing to remove the impostor for five months.”
A PUBLIC TRICK?
Durkin’s case was reported in the media, and the company argued that the $50 million demand was a “publicity stunt” and an abuse of process serious enough to warrant dismissal of the claim.
Although Durkin specifically used the phrase “to attract media attention” in one of his responses to the company, the judge was not convinced that was enough to prove the claim itself or the damages sought were “vexatious or an abuse of the legal process.” “
Durkin also said that after months of efforts to take down the fake account, media exposure led to its removal “within minutes,” the court said.
JUDICIAL HISTORY
Steeves’ ruling noted that while Durkin did not have an attorney in this case, “considerable qualification is required when he describes himself as self-represented in the sense of inexperienced,” noting his involvement as a party in seven other cases.
Facebook argued that the way Durkin conducted himself in other cases illustrated a pattern of “willful and willful disobedience to the rules and orders of this court,” according to the ruling, which noted that Durkin in one instance was “evasive ” , combative, deliberately vague and often dishonest.”
Steeves also said one case filed by Durkin was dismissed under Rule 9-5, and in another a judge found he had taken a false oath.
“I am not sure that the defendants’ statement goes that far, but I do not conclude that the plaintiff’s conduct in prior cases alone means that it is barred from proceeding with the subject action,” he wrote.
“Should plaintiff’s conduct as reflected in previous cases reoccur, then it is open to defendants to respond with appropriate legal action.”
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