Making a Deal with the Social Media Devil

You’ve made the decision: you’re finally going to sign up for Instagram. After months spent selecting the perfect handle, collecting curated photographs of your whimsical life (or at least how you’d like your life to appear to the rest of the world), and mustering up the courage to take the plunge, finally: Hellooo Insta-Fame! But, what’s this? A CONTRACT? What could be less sexy than a contract when you’re about to wow everyone you know with staged photography?

Should you read the fine print? Is there any point? It isn’t like you can do anything to change the terms. If you want social media renown, you have to agree. Deborah Douez felt the same way, but she actually did something about it. Douez brought a lawsuit against Facebook for a breach of her privacy and has won the initial important jurisdiction skirmish. In her claim, she asked the Court to invalidate a provision in the Facebook Terms of Use (the contract you agree to when you sign up).

Back in 2011, Facebook began to publish advertisements called “Sponsored Stories”. These “stories” display the names and photographs of Facebook members in association with an advertisement to their community. Douez’s name and image was promoted to her Facebook friends in association with a business. She only realized that Facebook was using her likeness to endorse paid advertisements—without her consent (or so she thought)—when a friend saw one of these “stories” and asked if she had gotten a new job.

Douez was not happy about this, and started a class action in British Columbia on behalf of 1.8 million Facebook members claiming that Facebook’s “Sponsored Stories” violated her privacy pursuant to the British Columbia Privacy Act.

Douez, like you and me, agreed to Facebook’s Terms of Use when she signed up to be a member. The only choice users who want to use the service have in the matter is to agree to Facebook’s terms; you cannot negotiate these terms with Facebook. This makes the Terms of Use a “contract of adhesion” which is typically required for membership to social media networks, to use a piece of software, or to rent a car (as examples). You’ve likely entered into hundreds of these kinds of contracts. We may be lawyers but we are not offended by the reality that you probably don’t read them. Honestly, who does?

One of the terms that you cannot negotiate with Facebook requires that all disputes be resolved in good ol’ Santa Clara County, home of Facebook’s head office. So Facebook tried to block the class action with a jurisdictional motion, that refuge of the “delay, hinder and avoid the merits” school of litigation defence.

The question made its way up to the Supreme Court of Canada, which released its decision on June 23, 2017 and proved that the Nine Supremes have got your back when it comes to the protection of your privacy in the wake of social media conglomerates.

In a 4-3 majority decision, the Court recognized that under specific circumstances, clauses in digital consumer contracts which require disputes to be resolved in a certain jurisdiction are unenforceable where constitutional rights or quasi-constitutional rights, such as privacy, are at stake.

This is a bit of a different approach than the Court has taken in the past with commercial contracts. In the context of “digital consumer contracts”, the Court considered that a different approach was justified because of the effect of the vast difference in bargaining power between the parties and the nature of the rights at stake.

The Red Robes up in Ottawa (well, a majority of them, anyway) decided that the forum selection clause in Facebook’s Terms of Use was unenforceable, because:

Does this mean that the digital consumer contracts you have “clicked to agree” in order to stream music on Spotify, network on Linkedin, get aesthetically inspired on Pinterest (Sanjay), and sell your crafts on Etsy don’t mean anything? Well, no. They are binding contracts (for the most part).

What this does mean, though, is that the Supreme Court of Canada recognizes the challenges we consumers face generally, which includes agreeing to terms set by a social media behemoth in exchange for the opportunity to access the Facebook community.

It is important to recognize that this decision might not have gone the same way had it been brought in Ontario. Privacy has been recognized nationally as a quasi-constitutional right. However, while BC, Manitoba, Saskatchewan, and Newfoundland and Labrador have laws that allow people to sue for privacy breaches, the rest of the provinces do not. The Courts in Ontario (and the other provinces) have been developing this area of the law decision by decision, and the area is developing rapidly as a result (well, as rapidly as anything Court-related can go, anyway). Would the difference between a “statutory” cause of action (BC and the rest) and a “common law” cause of action (Ontario) have made a difference in the decision? Like so many other questions, that one will have to go unanswered for the moment.

The reality on the interwebs is that we are all learning as we go along, even those super-important, uber-intellectual, Supreme Court Justices. In the meantime, revel in the affirmation you receive from your followers on Instagram. If you have any questions, tweet at us… we haven’t taken the Instagram plunge yet.





Sanjay Kutty

Sanjay is a Co-Founder and Lawyer at Spark LLP. Sanjay spent most of his career as in-house counsel at Bell Canada and CIBC before escaping to work instead with dynamic and innovative businesses, helping them to build interesting and exciting solutions for their customers. Sanjay travels a lot, so is the Chief Location Scout for Spark LLP.

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