Facebook’s choice of forum clause was overridden by B.C.’s Privacy Act

Most people in North America use Facebook. In Canada, over 70% are said to visit the site at least a few times each week.

When you create a Facebook account, or any online account, you agree to the “Terms and Conditions”. If you’re like many, you probably don’t ACTUALLY read those terms and conditions. Who has the time and interest to do so?

As a Facebook user, have you ever noticed that “sponsored stories” containing pictures and names of other users tend to pop up in your News Feed?

How would you feel if your picture and name popped up in a stranger’s feed?

Douez v Facebook involved the request to commence a class-action against Facebook as a result of these “sponsored stories”. Douez, like many other Facebook users, agreed to the Terms and Conditions of starting a Facebook account, and never felt the need to worry about what they actually said.

It was only when Douez wanted to start this class-action that the Terms and Conditions became an issue. Douez claimed that sharing her name without her consent violated British Columbia’s Privacy Act. Facebook argued for the action to be stayed on the basis that it shouldn’t have been filed in B.C.

Why would Facebook claim B.C. wasn’t the appropriate jurisdiction to file Douez’s action? Shouldn’t this be heard in B.C., especially since Douez lives in B.C.?

Not necessarily. Facebook’s Terms and Conditions contain a forum selection clause saying that all litigation involving Facebook and a user will fall under the jurisdiction of California courts. By accepting Facebook’s Terms and Conditions, you’re also accepting this clause.

This case made it to the Supreme Court of Canada where the Court asked: which forum has the jurisdiction to hear this? California, or B.C.? To answer, the Court considered issues like public policy, unequal bargaining power, and privacy.

In the decision, the Court declined to enforce the forum-selection clause, and allowed (in a 5 – 2 split decision) the class-action to commence with B.C. as the appropriate forum.

Why does this matter to you?

Because this decision creates uncertainty in the law.

Contracts contain terms and conditions to which the parties agree. For example, a New Brunswick seller may agree to sell goods to a B.C. buyer on condition that New Brunswick be the forum where any disputes between them are addressed. Depending upon the issue, this could be very detrimental to you and your business, especially if you’d prefer not to travel across the country to argue your case.

After this decision, it will be difficult to predict whether a forum selection clause in a contract will be enforced. This example of a Court ignoring a forum selection clause and allowing a different forum shows that a Court won’t always enforce the agreed conditions. Be sure to consider this when you draft or sign your next contract.

For more information on forum selection clauses and contracts, please contact us. 

Remy Rosinski, Student-at-Law