The Uncertain Enforceability Of Forum Selection Clauses In The Consumer Electronic Context: Douez V. Facebook

• The Supreme Court has held in  Douez v. Facebook that the test for whether a forum selection clause is enforceable is different in the consumer contract context than in the commercial contract context. In particular, the decision of the Court will arguably make it more difficult to enforce forum selection clauses in consumer electronic or social media contracts.

The decision arises from an action brought in British Columbia against Facebook Inc. by one of its users, Deborah Douez. Ms. Douez claimed that Facebook infringed her private rights and those of more than 1.8 million British Columbians, contrary to the Privacy Act, when Facebook allegedly used her name and likeness without her consent for the purposes of advertising.