It is foreseeable that not many of Facebook's millions of
users every day have ever had a look at the social network's
Terms & Conditions.
Only the readers of the fine print may know that these Terms
& Conditions provide that any claim related to Facebook must be
resolved exclusively in the United States District Court for the
Northern District of California or a state court located in San
Mateo County, and that the law of the State of California must
necessarily prevail without regards to conflict of law provisions.
This provision is deemed to protect Facebook against the claims
arising from foreign users. It has recently been challenged by
In a decision dated March 23, 2012, the Court of Appeal of Pau
dismissed Facebook's forum clause and found it unclear and
difficult to read for users. On March 5, 2015, for the second time,
the Paris Court of First Instance (Tribunal de Grande Instance)
rejected Facebook's challenge to its jurisdiction.
In this case, an art-lover schoolteacher had published on his
wall a link to Gustave Courbet's famous and provocative
painting, "L'origine du monde," representing a naked
woman. Like many 19th century critics, Facebook found unacceptable
the displaying of a nude body on its network and suspended the
account. In 2011, after several unsuccessful requests asking for
its reactivation, the schoolteacher and former Facebook user filed
a lawsuit against the company for violation of his free speech
rights. Facebook used its Terms & Conditions as a shield and
challenged French courts' jurisdiction. The clause was however
declared null and void by the Paris Court of First Instance. Judges
will now hear parties' main arguments.
This approach is consistent with the French data protection
authority's (Commission Nationale de l'Informatique et des
Libertés – CNIL) approach on jurisdiction: as soon as
means for collecting, processing and transferring data are located
in France, such as a computer or a tablet, the CNIL considers it
There is a clear trend now that the defense based on a
jurisdiction clause becomes less and less efficient. As a result,
compliance to local regulation becomes key.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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