Consumers protection: jurisdiction of the French Courts in a case versus Facebook

Facebook had been brought before the Paris Tribunal de Grande Instance by one of its users, for censoring his profile on which he posted a picture of Gustave Courbet painting “L’origine du monde” showing a female sex.

Facebook invoked the lack of jurisdiction of the Paris Tribunal de Grande Instance since a choice of court clause is present in the general conditions that all users accepted during registration. The choice of court clause gives jurisdiction to Californian courts.

The claimant alleged that the choice of court clause was an abusive clause according to French consumer law[1]. Facebook tried to dispute this point, arguing that the service provided is free for the user, element that should exclude the application of consumer law.

The Paris Tribunal de Grande Instance asserted its jurisdiction and stated, “A consumer can bring his case either before the court of his residence or the place where the damage occurred”. Also, “if the service proposed by Facebook is free for the user, it is unquestionable that the social network earns important benefits from its activity and as a consequence, Facebook acts as a professional [according to consumer law]. Furthermore, the contract concluded between the parties is an adhesion contract, since the user has no ability to negotiate.”

To the judges opinion, the adhesion clause that compel the subscriber to bring his action before an over sea court, to pay costs out of proportion with the economic stake of the subscribed contract, is meant to dissuade the consumer to bring any action against Facebook. This clause sets an “imbalance between the parties” and must be considered abusive according to consumer law.

The substance of the case will be discussed on the 21st May.

[1] Article L. 132-1 of French consumer law code: In the contracts concluded between professional and non-professional or consumers, are considered abusive the clauses, which has as their object or effect, at the expense of the non-professional or consumer, a significant imbalance between the rights and obligations of the parties.

According to the annex of this article, point q) the clauses which has as their effect: Delete or affect the right of action or the judicial remedy for the consumer, especially when the consumer is forced to take the case exclusively before an arbitral court non set by legal texts, wrongly limits the evidence means at the disposal of the consumer or place an unreasonable burden of proof on him that should, according to the governing law, be placed on another party.

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