It is foreseeable that not many of Facebook’s millions of users every day have ever had a look at the social network’s Terms & Conditions.
Only the readers of the fine print may know that these Terms & Conditions provide that any claim related to Facebook must be resolved exclusively in the United States District Court for the Northern District of California or a state court located in San Mateo County, and that the law of the State of California must necessarily prevail without regards to conflict of law provisions. This provision is deemed to protect Facebook against the claims arising from foreign users. It has recently been challenged by French courts.
In a decision dated March 23, 2012, the Court of Appeal of Pau dismissed Facebook’s forum clause and found it unclear and difficult to read for users. On March 5, 2015, for the second time, the Paris Court of First Instance (Tribunal de Grande Instance) rejected Facebook’s challenge to its jurisdiction.
In this case, an art-lover schoolteacher had published on his wall a link to Gustave Courbet’s famous and provocative painting, “L’origine du monde,” representing a naked woman. Like many 19th century critics, Facebook found unacceptable the displaying of a nude body on its network and suspended the account. In 2011, after several unsuccessful requests asking for its reactivation, the schoolteacher and former Facebook user filed a lawsuit against the company for violation of his free speech rights. Facebook used its Terms & Conditions as a shield and challenged French courts’ jurisdiction. The clause was however declared null and void by the Paris Court of First Instance. Judges will now hear parties’ main arguments.
This approach is consistent with the French data protection authority’s (Commission Nationale de l’Informatique et des Libertés – CNIL) approach on jurisdiction: as soon as means for collecting, processing and transferring data are located in France, such as a computer or a tablet, the CNIL considers it has jurisdiction.
There is a clear trend now that the defense based on a jurisdiction clause becomes less and less efficient. As a result, compliance to local regulation becomes key.