On June 23, 2017, the Supreme Court of Canada issued a landmark decision in Douez v. Facebook, ruling that non-negotiated take-it-or-leave it contracts should not always be enforced by the courts, particularly where important rights, as privacy rights, might be lost by doing so. The decision – a victory for all Canadians – was made possible through contributions from the Centre for Law, Technology and Society at the University of Ottawa including Marina Pavlović, Jeremy de Beer and Michael Geist, CIPPIC’s David Fewer and Tamir Israel, and several students who contributed to each step of the process.
The Court’s decision ultimately rejected Facebook’s attempt to enforce a “forum selection clause” to block a privacy class action lawsuit in British Columbia on the grounds that its own contract specified that legal actions should be brought in California. The Court ruled that the unequal bargaining power between consumers and companies such as Facebook, not to mention the privacy rights of Canadians, necessitated that the forum selection clause should not be enforced and that the lawsuit should proceed in Canada. Ultimately, the decision represents a clear recognition that courts should not be quick to allow companies to deny consumers important rights by using contractual terms to override inconvenient laws and protections.
Professor Geist’s 2001 paper “Is There a There There? Toward Greater Certainty for Internet Jurisdiction” is cited in the decision, as is Professor Pavlović’s 2016 paper “Contracting out of Access to Justice: Enforcement of Forum‑Selection Clauses in Consumer Contracts”. The Court also quotes the intervention presented by the Faculty’s own Samuelson-Glushko Canada Internet Policy and Public Interest Clinic (CIPPIC), work on which was led by Clinic Director David Fewer and Staff Lawyer Tamir Israel. Professors Pavlović and de Beer, along with Paul Bates of Siskinds LLP, represented CIPPIC before the Supreme Court.
Finally, in a laudable example of the enthusiastic commitment to experiential learning by the Faculty of Law and the Centre for Law, Technology and Society, several students at CIPPIC contributed to the research and the intervention that led to the eventual decision, including Jeremiah Barbee (JD c. 2018), Meika Ellis (JD 2017) and earlier on Michael La Sorda.
Congratulations to all of the contributors to this important ruling!
This decision is a wonderful testament to the excellence of the scholarship and advocacy at the Centre for Law, Technology and Society and at the Samuelson-Glushko Canada Internet Policy and Public Interest Clinic!