As an integral part of the Internet, Social Medias combines, by their volatile nature, the international standards, providing global services beyond countries and nationalities. This raises apprehensions at the level of applicable law, as well as the international jurisdictions. The real concern for the judiciary is the possibility of their decisions’ implementation by Social Medias, especially when conflicting with the terms of use of these networks.
In private international law, the most important legal rule states that Freedom is left to the will of the parties to determine the applicable law. This rule was enshrined in the Treaty of Rome of 1980. In fact, the majority of Social Medias’ terms of use explicitly define the applicable law as the US law in general or a specified state law in particular. Users have the freedom to agree or reject, as there is no means for negotiation or modification in compliance contracts. Consequently, would the parties here be free to elect the applicable law?
Facebook for instance opts for the jurisdiction of the State of Delaware, while article Five from the Treaty of Rome provides that the choice of the applicable law in a contract, cannot deprive the consumer from the protection statutes accorded to him in the laws of his country of origin. In fact, Facebook terms of use are without any doubt consumption contracts, as long as consumer is using it outside the professional circle.
Facebook terms of use states the following clause: « By visiting or using the Site and/or the Service, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates ».
Well, Facebook terms of use constitute a contract between user and website; but substantial distinction exists between the civil law and the common law in this regard. In the civil law systems, no contract can violate a rule of public order. If a dispute is brought before a French court for example, which includes special contractual provisions that violate public order, the court will consider it invalid and will retain the jurisdiction of the French law in force.
However, the protective police rules applies in both legal systems, and as a result the predefined jurisdiction in Facebook Terms of use, that prohibits the consumer from the legal protection as established in his country of origin laws, would most likely be illegal. Moreover, those are arbitrary, especially as they create substantial disproportions between the parties’ rights and obligations to the contract, and thus may be considered as unwritten.
On the other hand, twitter incorporated the following jurisdiction clause: « These Terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence ». A rule referring us to the above mentioned reasoning, prohibiting explicitly the user/consumer from the protective legal principles.
Yet, It is beneficial to highlight the European Directive No. 13/93 of April the 5th, 1993 that expressly obliges members of the union to take all appropriate measures to prevent the consumer deprivation of his legal protection afforded to him in the European directives, when opting for a foreign jurisdiction. But wait a minute; the jurisdiction here is for the American law where the legal system is completely different.
Let us be more practical, Facebook is indeed free from liability, especially when responding to out of state judicial decisions, as proven in many cases. In fact, they do not comply with any external judicial decisions. According to exequatur procedures, External decisions, implemented under a non-American jurisdiction, must conform to the American public order, which is often difficult to meet, especially when it comes to matters affecting individual freedom on the internet.
Therefore, what would be the best solution for users’ jurisdiction selection on Facebook? Especially for those residing out of state? The experience over the last ten years reveals that Facebook users’ best solution, will be to opt in for the Delaware Jurisdiction. It is where the decision will be executed and where the pecuniary damages will be compensated. We can confirm in this regard, that hundreds of offshore decisions rendered against Facebook remain unexecuted. Are we going to find our feet in a distinct civil procedure in the near future, where only a single jurisdiction will rule them all???
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1. Picture courtesy: https://www.euronews.com/next/2021/07/29/facebook-has-mishandled-hate-speech-content-says-german-federal-court