Facebook Must Face the Fact That Its Forum Selection Clause is Unenforceable in Canadian Privacy Class Action

The Supreme Court of Canada today released a landmark decision in Douez v. Facebook  holding that the the forum selection clause in the click wrap Facebook agreement to which nearly two billion people have "agreed" but likely nobody but a few lawyers have ever read is unenforceable in a privacy class action launched in British Columbia.

The conspicuous references to such concepts as “gross inequality of bargaining power”, “consumer contracts of adhesion”, “grossly uneven bargaining power” are very encouraging for consumers’ rights in an age when, as Justice Abella asks in her concurring opinion:

[99] “What does “consent” mean when the agreement is said to be made by pressing a computer key? Can it realistically be said that the consumer turned his or her mind to all the terms and gave meaningful consent?”

Justice Abella goes on to say:

[104] In general, then, when online consumer contracts of adhesion contain terms that unduly impede the ability of consumers to vindicate their rights in domestic courts, particularly their quasi-constitutional or constitutional rights, in my view, public policy concerns outweigh those favouring enforceability of a forum selection clause.

Any knowledgeable copyright lawyer is going to be asking now whether and how the majority opinion and particularly Justice Abella’s concurrence might impact copyright licence agreements that purport to limit users’ fair dealing rights. There is already other Supreme Court of Canada jurisprudence that indicates that consumers cannot contract out of or relinquish important statutory rights, such as the right to pay off a mortgage at the end of any given five‑year period.

HPK