This article focuses on the relationship between forum selection clauses, choice of law clauses and data protection and privacy protection. In particular, it discusses the question whether and why jurisdiction and choice of law clauses used in the terms of social media providers should not be enforced against social media users located in a different jurisdiction. The article distinguishes between the contractual, private law analysis and the application of public policy as part of the private international law analysis.The contract law analysis is centred on doctrines such as unconscionability, which in turn examines issue such as fairness and overwhelming bargaining power of one party. By contrast, the public policy analysis in private international law focuses on fundamental rights, legality of contractual clauses according to the local law of the forum and the interests of justice. It is argued here that both aspects (contractual and public policy doctrines) are paramount for achieving not only justice between the parties of a dispute but also ensuring good administration of justice in the public interest.

Introduction

In Douez v Facebook1 , the Canadian Supreme Court has recently held that the choice of jurisdiction clause contained in Facebook’s terms with its Canadian users should be displaced as unenforceable in a tort class action alleging an infringement of the Privacy Act of British Columbia, thus recognizing the jurisdiction of the local courts in British Columbia to protect local consumers under their local privacy standards. In a similar case, Max Schrems began a collective redress action alleging a long list of infringements of EU data protection law before the Austrian courts in 2014, likewise arguing that the jurisdiction clause in his contract with Facebook selecting the Irish Courts should not apply, basing his argument on Articles 17 and 18 (1) of the Brussels Regulation Recast.2 Max Schrems is suing on his own behalf and in a collective action, on behalf of 25,000 other Facebook users who have ceded their claims to him online. While this case raises procedural issues under Austrian law (which does not recognize class actions as such), it additionally raises questions about the extent of the special consumer protection rules in the Brussels Regulation Recast, including the question whether Mr Schrems is acting as a consumer in the meaning of the Regulation if he acts as a representative for the class, albeit unpaid.3The Supreme Court of Austria has referred questions to the Court of Justice of the EU in an action, which is currently pending.4 Both these cases concern the question whether a jurisdiction or forum selection clause used in the terms of social media providers should be enforced against social media users located in a different jurisdiction. This question is inextricably linked to differing privacy and consumer protection standards in the country of origin of the social media provider and the country of destination of the user, and the business model of such providers based on the exploitation of users’ private information in exchange for “free” services. This article does not examine any of the substantive privacy and consumer protection issues but instead focuses on the relationship between forum selection clauses, choice of law clauses and data protection and privacy protection. In particular, it examines whether and why such clauses may be invalid and unenforceable in relation to privacy tort claims analysing US and Canadian laws. In doing so, the article distinguishes between the contractual, private law analysis and the application of public policy as part of the private international law analysis. The contract law analysis is centred on doctrines such as unconscionability, which in turn examines issue such as fairness and overwhelming bargaining power of one party. By contrast, the public policy analysis in private international law focuses on fundamental rights, legality of contractual clauses according to the local law and the interests of justice.