One week after the BC Court of Appeal upheld a Worldwide Injunction on Google in Equustek v Google, (2015 BCCA 265) the BC Court of Appeal redrew the line of extraterritorial jurisdiction. In Douez v Facebook (2015 BCCA 279), the Plaintiff brought an action against Facebook alleging that her name and portrait were featured in “Sponsored Stories” on the Facebook newsfeed without her consent. Sponsored Stories was an advertising program run on Facebook whereby a user’s name and profile picture would appear alongside an advertised product or service the user had “liked” on friends’ Facebook newsfeeds. Douez relied on the tort created under the BC Privacy Act (RSBC 1996, c 373), which makes the use of the name or portrait of another for the purpose of advertising, promoting the sale of, or the trading in, property or services, without consent, an actionable claim.  Ms Douez also applied to have the action certified as a class proceeding.

Facebook applied for a stay of proceedings based on the grounds that BC was forum non conveniens. The stay was denied by the trial court but overturned upon appeal. Facebook relied upon their Terms of Use agreement which contained a forum selection clause attorning all disputes to the jurisdiction of the courts of the state of California. Each Facebook member must agree to the Terms in order to use the Facebook service, thus binding the Plaintiff to bring her dispute to a California Court. The Appellate Court found the clause was “valid, clear and enforceable” under the test defined in ZI Pompey Industrie v ECU-Line (2003 SC 27) and placed the burden on to the Plaintiff to show strong cause for the Court to decline to enforce the clause. Douez countered by asserting that that section 4 of the Privacy Act should trump the Terms of Use as it demands that “an action under this Act must be heard and determined by the Supreme Court”.

The Appellate Court interpreted section 4 to mean that the BC Supreme Court has jurisdiction to the exclusion only of other courts within BC and ‘not other courts worldwide’. While the Appellate Court declined to hear the matter in BC, the Court noted that Ms Douez is free to bring the matter to a California court.

This decision will come as welcome news to online businesses seeking assurances that Courts will uphold their forum selection clauses in online Terms of Use agreements provided that terms are ‘valid, clear and enforceable’. Similarly, consumers should take heed that online agreements will generally be enforced by the courts and may wish to take a few moments in future to read through the terms and conditions of use before clicking “I AGREE”. 

E-TIPS® ISSUE

15 07 15

Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.

E-TIPS is a registered trade-mark of Deeth Williams Wall LLP.