Facebook thought it could circumvent French law by means of a clause assigning jurisdiction to California but has nonetheless felt the full force of several decisions.
The Pau Court of Appeal had already ruled, on March 23rd 2012 that the clause assigning jurisdiction in all disputes to the California courts was non-existent on the basis of lack of consent to this clause[1] - but not to the one affecting users' consumer rights - the CNIL (National Commission on Informatics and Liberty), the DGCRF (French Office of Fair Trading)[2] and the Paris Court of Appeal ruled against the appeal by Facebook in early 2016.
The Court of Appeal of Paris, in a judgement made on 12th February 2016, confirming the order of the High Court of Paris from 5th March 2015, ruled on a dispute between Facebook and a user after his account was blocked following his publication of a reproduction of "The Origin of the World" by Gustave Courbet, content deemed contrary to the site's terms of use. Three significant elements emerge from this decision:
(i) The relationship linking the user to Facebook is qualified by the consumer contract, to the extent that the use made by the user is completely separate from his work, and despite the fact that the service is free, "Facebook Inc. draws significant benefits from the use of its activities ", Facebook is therefore clearly a professional service.
(ii) The French court is competent to judge the legality of the jurisdiction clause contained in Facebook's T&Cs[3], since the consumer is domiciled in France[4] .
(iii) The same clause is deemed a breach of articles L. 132-1 and R. 132-2 of the Consumer Code and shall be disregarded. According to the Paris Court of Appeal, this clause creates "a significant imbalance between the rights and obligations of parties to the contract" and "a serious obstacle to a French user to exercise his right to legal action".
Hearings on the merits that address a much more difficult issue will now commence: restraining Facebook. On Tuesday, February 9th 2016, the DGCCRF denounced Facebook's terms and conditions, including the clause stating "discretion to remove content or information published by the user on the network" and "the right to unilaterally change its conditions of use without the user being informed beforehand or assuming his agreement. " These clauses, like certain clauses related to[5]payments, create a "significant imbalance between the rights and obligations of the parties to the detriment of users". However, the match already seems to have got off on the wrong foot...
And this, especially since the CNIL[6] has highlighted the following Facebook practices: tracking of users including those without their own Facebook account; collecting data on their political or religious opinions and sexual orientation; the transfer of personal data on its members to the United States, which has not permitted since the ECJ decision of October 6th 2015[7]. In doing so, Facebook has been given notice by the CNIL to comply with the law within three months; otherwise, the company will pay a fine of up to a maximum of € 150,000.
Therefore, regulators and French judges seem to have Facebook in the crosshairs and are finally ready to act against this monster of the Internet, even though it suffered a major setback in India in the early February 2016 with the prohibition of Free Basics, the low cost mobile internet service that gave access to a limited number of services and[8]applications.
[1] Art. 48 of the Civil Procedure Code: "Any clause that departs, directly or indirectly, from the rules of territorial jurisdiction will be deemed non-existent unless it has been agreed between parties to a contract entered into as merchants and the same has been provided for in an explicit manner in the undertakings of the party against whom it will be enforced.. "
[2] General Directorate for Fair Trading, Consumer Affairs and Fraud Control
[3] Terms and Conditions
[4] Accordance with Art. 16 of the Aforementioned Regulation.
[5] "The right to unilaterally change its conditions of use without prior notice to the consumer" and "the right to modify or unilaterally terminate its payment service without prior notice to the consumer".
[6] CNIL (National Data Processing and Liberties Commission)
[7] Decision No. 2016-007 of the CNIL January 26th giving notice to the companies FACEBOOK INC. and FACEBOOK IRELAND
[8]http://www.lemonde.fr/pixels/article/2016/02/08/internet-mobile-l-inde-ferme-officiellement-la-porte-a-un-facebook-low-cost_4861378_4408996.html
Authors : Marie-Avril Roux & Simon Peteytas