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BC Court of Appeal relaunches the class action against Google Photos

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The Google logo in the window of a Google store in New York. (Archive photo)

Radio-Canada

The British Columbia Court of Appeal has revived a British Columbia resident's attempt to file a class action against Google Photos for allegedly violating user privacy. He believes that the internet giant uses facial recognition technology to collect and store biometric data.

The appeal allows Yeremia Situmorang to return to the Supreme Court of British Columbia to try to validate a class action against Google.

In a notice of civil suit, Yeremia Situmorang said he used Android phones to take photos of himself and others, including his children. These were then automatically uploaded to Google Photos, the tech giant's photo sharing and storage service.

The complainant claims that he did not give consent to the company to extract, collect, store and use his facial biometric data , nor those of his children, who do not use Google Photos.

Yeremia Situmorang claims facial biometric data is inherently sensitive personal information, just like an individual's DNA or fingerprints, according to court documents.

He considers that the processing of data by the company without adequately disclosing this practice to those registered in the class action or without requesting their consent constitutes a violation of their privacy.< /p>

Yeremia Situmorang filed suit on behalf of Google Photos users and non-users whose facial biometric identifiers were extracted and collected.

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In its response to the civil complaint, Google stated that its face grouping feature uses algorithms to organize photos containing similar faces.

Algorithms used for face clustering do not attempt to identify a person from a photo; their only function is to create a "face model" which is then used to group the photos, we can read in the summary of the response to the complaint.

The data used to group faces is private to a user's account and is only used within that account, the company said. #x27;company.

It also clarified that the use of face grouping is disclosed to all Google Photos users, who can disable this feature at any time.

In a decision released in November 2022, a British Columbia Supreme Court judge dismissed the action, stating that it was clear and obvious that the allegations did not establish that the conduct of Google had no legal justification. Nor has it been established that a reasonable person would consider Google's use of biometrics for face clustering to be highly offensive.

At the time, the judge rejected Yeremia Situmorang's claims that facial biometric data is accessible to third parties and that Google uses this data to gain an advantage competitive. He called the allegations vague and speculative.

In her appeal, Yeremia Situmorang argued that the Supreme Court judge erred by fundamentally misinterpreting her complaint.

In a unanimous judgment written by Judge Karen Horsman, the Court of Appeal ruled in favor of Yeremia Situmorang.

The judge wrote that the complaint was not about the fact that Google collected data for the face grouping feature, but about the fact that the company extracted, collected, stored and used data from photos uploaded to Google Photos without the consent of the persons concerned and without their knowledge.

The question of whether the facial biometric data collected from the persons registered in the class action was used, exclusively or not, for the purposes of the face clustering function is, as asserted by the author of the appeal, largely unrelated to the viability of the grounds for action invoked, wrote Karen Horsman. has the right to control his or her own facial biometric identifiers, and that such control is not ceded by the act of uploading a photograph.

In my view, the judge erred in assessing the elements of the appeal's cases through the prism of an assertion that the appellant did not, in fact, make, detailed Judge Horsman.

She adds that Yeremia Situmorang has not yet been able to plead precisely on the use of data by Google, nor regarding the extent to which the company has allowed others to access the information. According to the judge, Yeremia Situmorang's allegations are therefore not vague and speculative.

The allegations may turn out to be factually false , but that's a question for the trial, writes Karen Horsman.

CBC/Radio-Canada contacted Google for feedback on this case. The company has not yet responded.

With information from Jon Azpiri

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