Bennett v. Lenovo 2017 ONSC 1082 (CanLII)
So you go to Best Buy and you buy a Lenovo laptop. Then you use your laptop. Then you find out that Lenovo installed two programs which permit the redirection of your internet data to a third party (Super-fish).
Daniel Bennett a lawyer from Newfoundland did just that. He then started a class action in Ontario against Lenovo and Superfish.
Is a laptop with no privacy merchantable?
The important point is how he attacked. Bennett claimed under the Sale of Goods Act, alleging a breach of implied warranty. It seems that insuring your internet connectivity is not automatically funneled to a third party without the consumer’s knowledge, might be a basic implied warranty. Is it also a representation? Did Lenovo say that the laptop has security features?
Here’s what Lenovo’s warranty said:
5.2 LENOVO MAKES NO WARRANTIES FOR SOFTWARE, SERVICE, SUPPORT OR THIRD PARTY PRODUCTS. SUCH SOFTWARE, SERVICE, SUPPORT AND PRODUCTS ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. SOME PROVINCES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS OF WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO CUSTOMER… (emphasis added)
To paraphrase, Lenovo asserted: ‘well your honour, even if you can’t use the laptop for internet use, you can still type with it. So it is still ‘merchantable’. So no breach of the Sale of Goods Act.’ (para 13)
Belobaba J. said that it is doubtful that a laptop that cannot be used for internet purposes is still ‘merchantable’ (para 15).
Is Lenovo’s tricky laptop an intrusion upon seclusion?
Bennett’s second attack was intrusion upon seclusion. This Ontario tort created in Jones v. Tsige by the Ontario Court of Appeal is purpose-built for cases of improper dealing with other people’s internet transactions.
Is Lenovo’s tricky laptop a breach of privacy?
Bennett’s third attack was to assert the provincial privacy acts in Newfoundland, Saskatchewan, British Columbia and Manitoba but not Ontario.
Was the Ontario privacy legislation left out because Ontario is sufficiently governed by Jones v. Tsige, or is Ontario legislation missing a protective component that other provinces have in their legislation?
Lenovo tried to have the entire matter dismissed on summary judgment (Rule 21.01(1)(b)). Nothing to see here folks, go back to your internet and let us see what you’re looking at.
Belobaba J. struck a breach of contract claim, but continued merchantability, intrusion upon seclusion and privacy.
Average Joe wins, Silicon Valley loses.
