Can you launch a class action against Facebook in Quebec?
Apparently not. The Superior Court of Quebec just released its
decision in St-Arnaud v. Facebook Inc.,1 a
judgment that could cause major waves in the world of class action
and consumer protection law.
On July 6, 2010, Patrice St-Arnaud filed a motion to authorize
the bringing of a class action against Facebook. The petitioner, a
casual Facebook user, presented the motion on behalf of all persons
in Quebec who were allegedly wronged by Facebook with respect to
the use of their personal information.
The facts of the case are relatively simple. The petitioner
signed up to Facebook and submitted various items of personal
information during the sign-up procedure. The personal information
made publicly available included his name and the
"networks" he belonged to. In November 2009, however,
Facebook changed the privacy settings without consulting users,
meaning previously confidential information became public.
The petitioner was of the opinion that these changes were made
without proper and informed consent, in breach of Facebook's
contractual obligation and applicable legislation regarding the
protection of personal information.
Facebook opposed the motion to authorize the bringing of a class
action on the grounds that Quebec courts lacked jurisdiction to
hear the case. According to Facebook, Mr. St-Arnaud and all
contain a jurisdiction clause providing that all disputes between
the user and Facebook are to be heard before the courts of
The Decision of the Superior Court
The Superior Court of Quebec (Deziel J.) agreed with Facebook.
The Court concluded that all Facebook users were bound by
that they read the terms when they signed up for Facebook (2) they
could follow a hyperlink to those terms (3) the hyperlink is
available on all Facebook web pages (4) users are always either
logged in to Facebook or are redirected to a login page which
contains a hyperlink to the terms.
Relying on the reasoning of the Supreme Court in Dell
Computer Corp. v. Union des consommateurs, the Court also held
that the jurisdiction clause was not an "external clause"
but an integral part of the contract such that Facebook users are
bound to submit any claim to Californian courts.
Normally, Quebec's Consumer Protection Act and
Civil Code would have led to a different result since they
forbid contractual clauses from forcing consumers to submit to the
jurisdiction of either arbitration tribunals or foreign courts.
Significantly, however, the Court held that the contract between
Facebook and its users was not a consumer contract because use of
Facebook is entirely free. The Court concluded that in order to
attract the protection granted to consumers under Quebec law, there
must be some consideration paid.
This case raises the important issue of whether companies that
provide services free of charge must respect the stringent
requirements of the Quebec Consumer Protection Act.
Neither the Civil Code nor the Consumer Protection
Act expresslyrestrict consumer contracts to onerous contracts.
Given the potential impact of this decision, it will be interesting
to see whether or not this case will be appealed.
The author wishes to thank Mr. David Crandall, articling
student, for his help in preparing this bulletin.
1 2011 QCCS 1506.
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