Class-action lawsuit against Facebook claiming discrimination gets the green light

The Quebec Court of Appeal has approved a class-action lawsuit launched on behalf of Facebook users who claim they were discriminated against because the social media giant allowed advertisers to target job and housing ads based on factors like age, gender or race.

The class action could include thousands of Quebec residents who have used Facebook since April 2016 and who were looking for jobs or housing during that period.

Facebook has 60 days after the court's Dec. 22 ruling to decide whether to appeal to the Supreme Court of Canada. If it does not appeal, the case returns to the Quebec Superior Court.

Audrey Boctor, a lawyer with the Montreal law firm IMK who launched the class action application in 2019, said the ruling "offers a way forward for claims that might otherwise never be brought."

"We are very pleased with the Quebec Court of Appeal judgment that recognizes that class actions are an appropriate vehicle for claims of widespread, surreptitious discrimination," Boctor said.

"Algorithmic discrimination that excludes people such as women and older workers from receiving employment advertisements is just a modern form of the same type of discrimination that is illegal under the Quebec Charter."

Boctor estimates the class action could involve $100 million in damages.

Facebook's parent company Meta declined to comment, or to say whether it plans to appeal the ruling.

The lawsuit centres on the practice of "microtargeting" ads. While such ads appear the same as any others the surface, they're designed to ensure they appear only in the Facebook feeds of people who belong to the groups being targeted.

A woman, for example, wouldn't see an ad microtargeting men, while a 55-year-old wouldn't see an ad aimed at people aged 18 to 45.

An application to launch the class-action suit — one that had been in the works for a while — was filed days after a CBC News investigation revealed that nearly 100 employers — including government departments — posted microtargeted job ads on Facebook that experts said could violate Canadian human rights law. The lawsuit cites a number of the examples documented by CBC News of microtargeted job ads that older workers would not have seen in their Facebook feeds.

Under federal and provincial human rights law, employers aren't allowed to restrict who sees job ads based on age, gender, race or religion, unless the restriction is a bona fide occupational requirement or is part of a specific initiative like a student summer job program.

The Canadian and Ontario human rights commissions also called on Facebook to take steps to end microtargeting.

In December 2020, Facebook announced it would begin enforcing new rules for advertisers in Canada to prohibit discrimination in ads for jobs, housing and credit services. The new rules were meant to stop advertisers from targeting those ads based on criteria such as age, gender or postal code; they did not prohibit microtargeting for other kinds of ads.

Facebook also created a searchable ad library to allow users to see all the Canadian ads falling under those categories.  But the ad library does not reveal information about who was targeted by the ad or who saw it in their Facebook feed.

In July 2021, Quebec Superior Court Justice Suzanne Courchesne ruled that the plaintiffs had a arguable case but denied authorization to proceed with the class action — because she said the definition of the class involved was too broad and could cover "several thousand if not millions of members."

The Quebec Court of Appeal disagreed and allowed the class-action lawyers to tighten the description of who was affected. Writing for the court, Justice Marie-France Bich said the Quebec Superior Court made a "revisable error."

Bich wrote that the case raises questions about new forms of discrimination in the digital world, whether social media platforms can be held responsible for third-party ads they post and whether platforms are able to control the ads on their platforms.

Sonja Solomun, deputy director of the Centre for Media, Technology and Democracy at McGill University, said the case could have repercussions for other social media platforms and raises fundamental questions around privacy and democracy.

"I do think that this certainly has implications beyond just Facebook," she said.