Deborah Louise Douez v. Facebook, Inc.

(British Columbia) (Civil) (By Leave)




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Private International Law – Choice of Forum – Contracts – Courts – Jurisdiction – Privacy – Statutory torts – Effect of a forum selection clause in the online terms of use of a social media networking website – To what extent does Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450, 2003 SCC 27, apply to forum selection clauses in online contracts of adhesion attempting to avoid the exclusive grant of jurisdiction to domestic courts in quasi-constitutional public protection statutes – To what extent do protective statutes enacted in the public interest constitute “strong cause” to avoid forum selection clauses – Is a forum selection clause considered as part of the statutory forum non conveniens analysis within the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”) framework or must a plaintiff first demonstrate a “strong case” not to enforce the forum selection clause before receiving the benefits of the CJPTA.

The applicant commenced an action and sought certification as a class action against the respondent. She alleged it used her name and portrait in an advertisement product known as “Sponsored Stories” without her consent, contrary to the statutory tort created by subsection 3(2) of the Privacy Act, R.S.B.C. 1996, c. 373. When a Facebook member “likes” a post on Facebook that relates to an entity that has purchased an advertising service, the respondent sometimes features the name and/or likeness of that member, together with the advertising logo and other product or service information of that entity, in a Sponsored Story sent to the member’s Facebook contacts. The member is not notified about the Sponsored Story. The respondent argued that it had obtained either the express or implied consent of its users through its terms of use, other disclosure on its website, and through a user’s actions such as their privacy settings. It also submitted the court should decline jurisdiction on the basis that California was the designated choice of jurisdiction and applicable law in the terms of use.

The Supreme Court of British Columbia dismissed the respondent’s application to have court decline jurisdiction and certified the applicant’s action as a class action. The Court of Appeal for British Columbia allowed the appeal, holding that the respondent’s forum selection clause should be enforced and granting a stay of proceedings.

Lower Court Rulings

May 30, 2014
Supreme Court of British Columbia

S122316, 2014 BCSC 953
Respondent’s application to have court decline jurisdiction dismissed; Applicant’s action certified as a class action
June 19, 2015
Court of Appeal for British Columbia (Vancouver)

CA41917, 2015 BCCA 279
Appeal allowed, stay of proceedings entered for applicant’s action due to enforcement of forum selection clause