Supreme Court to Hear Online Privacy Jurisdiction Appeal

CIPPIC's application for leave to intervene has been granted in Douez v Facebook Inc, SCC File No 36616, an appeal that raises fundamental questions regarding the nature of online jurisdiction, e-consumer protection and privacy. Specifically at issue is a forum selection clause imposed by Facebook onto all of its customers, on a take it or leave it basis, mandating that all disputes be brought against it in California. On the basis of this clause, it was held that a class action launched against Facebook in BC and alleging violations of BC privacy laws cannot proceed.

Managing online jurisdiction-where services can have significant global presence and impact on a largely virtual basis-has strained digital policy since the early days of the world wide web. However, CIPPIC's proposed intervention intends to argue that forum selection clauses are ill-suited as a means of navigating the challenges posed by global online services. A mandatory, non-negotiable forum selection clause effectively opts a service provider out of Canadian standards and laws as foreign courts tend to apply their own rules and standards. As forum selection clauses are ubiquitous and non-negotiable in online services, their universal enforcement could effectively deprive Canadians from domestic protections in relation to digital activities that are increasingly critical to their daily lives. In addition, it could force any Canadian individual embroiled in a dispute with a global online platform to undertake the expense and inconvenience of suing in a foreign court.

Prior to its motion for leave to intervene, CIPPIC staff provided an affidavit in support of the class representative, Douez's application for leave to appeal. The affidavit highlighted the manner in which different jurisdictions provide different levels of privacy protection to their citizens, whereas it is important to allow jurisdictions to set their own standards when protecting constitutional values. It also touches on the broader implications of this decision, which will affect other digital platforms and services, which will also be subject to any forum selection imposed onto customers by means of a non-negotiable clause. Finally, it notes that procedural safeguards often differ greatly between jurisdictions as well - for example, many US jurisdictions permit companies to opt out of the courts or class actions altogether, compelling disputes to resolution by means of arbitration, where customers are often at a disadvantage.

CIPPIC's Factum in its Motion for Leave to Intervention:

• CIPPIC, Motion for Leave to Intervene, Factum, SCC File No 36616, July 31, 2016
• Affidavit in support of Applicant's Leave to Appeal, SCC File No 36616, September 11, 2015