One week after the B.C. Court of Appeal ruled that it could order Google to remove websites from its global index, the same court (but different judges) ruled that a privacy class action lawsuit against Facebook could not proceed in the province because the Facebook terms and conditions provide that all disputes must be resolved in a court in Santa Clara, California. The decision should provide a wake-up call to users and policy makers because an absolute approach to terms and conditions not only means that Canadian courts may be unable resolve consumer disputes involving companies like Facebook, but that Canadian law will not apply either.
The current Facebook terms and conditions state:
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
While this appears to be slightly different from the terms that governed the dispute before the B.C. courts (it referenced courts in Santa Clara county), the key takeaway from the decision goes well beyond a proposed class action lawsuit over a Facebook “sponsored stories” program that no longer exists. The trial judge rightly noted that the heart of the case is whether online terms and conditions override domestic legal protections (in this case, the B.C. Privacy Act).
