Adam Kardash, Christopher Naudie, Kelly Osaka
June 24, 2015
The plaintiff commenced a proposed class action against Facebook in the B.C. courts, alleging that Facebook breached the Privacy Act by using her name and portrait in Sponsored Stories without her consent.
The plaintiff alleged that a Sponsored Story was a form of advertisement in which a user’s name and profile picture was republished to their friends on Facebook after he or she “liked” a post or page associated with a business, political party, charity or other entity.
In a unanimous decision on Facebook’s appeal, the Court of Appeal held that the Facebook forum selection clause should be enforced and was not overridden by section 4 of the Privacy Act.
Chief Justice Bauman, speaking for the Court, set out the approach to be followed in considering forum selection clauses in these circumstances: (i) Facebook was required to show that the forum selection clause was valid, clear and enforceable, and that it applies to this proceeding; (ii) if Facebook did so, the burden then shifted to the plaintiff to establish “strong cause” for the court to decline to enforce the clause; and (iii) if the plaintiff did so, Facebook could then submit that the court should nonetheless decline jurisdiction on the basis of forum non conveniens applying the factors under section 11 of the Court Jurisdiction and Proceedings Transfer Act.
The forum selection clause is valid, clear and enforceable, and applies to this proceeding
The Court agreed with the chambers judge that Facebook’s forum selection clause was valid, clear and enforceable, and applied to the plaintiff’s claim. The Court held, however, that the chambers judge erred in her interpretation of section 4 of the Privacy Act. Specifically, the chambers judge failed to recognize that B.C. law applies only in British Columbia. The Court held that absent evidence to the contrary, a California court must be presumed to determine for itself whether it has territorial competence over a given proceeding. A California court would presumably consider B.C. law and have due regard for principles of comity, but the laws of British Columbia cannot bind courts of California unless California law so provides. Section 4 of the Privacy Act can mean only that the B.C. Supreme Court has jurisdiction to the exclusion of other courts in B.C., not other courts worldwide.
The plaintiff failed to show a strong cause not to enforce the forum selection clause
Because the plaintiff failed to put on the record any evidence as to California private international law, the Court could not make a finding that California courts would not have territorial competence. The plaintiff failed to meet her burden, as she relied solely on the chambers judge’s erroneous interpretation of section 4 of the Privacy Act to argue that California courts lacked territorial competence.
The Court of Appeal concluded that Facebook’s forum selection clause should be enforced and thus the Court stayed the underlying action. As a result of its disposition of this threshold jurisdictional issue, the Court did not find it necessary to consider the issues of forum non conveniens or certification.
*Osler partners Mark A. Gelowitz and Tris Mallett represented Facebook in this litigation and argued this appeal.