The legal enforceability of TOS provisions is relevant to both social media users and app developers. Individuals or businesses who use social media should consider how the TOS affect their legal rights and obligations, especially regarding privacy and dispute resolution. On the other hand, if you’re developing an app for your business, you need to consider what provisions you should include in your TOS and how they should be drafted to ensure legal enforceability.
In particular, “choice of forum” provisions in TOS may be contentious in Canadian courts. Such provisions purport to set out where dispute resolution must take place.
Background: Douez v Facebook, Inc
On appeal, the British Columbia Court of Appeal reversed the decision and held that the plaintiff failed to show “strong cause” to decline to enforce the choice of forum provision. Notably, in the view of the Court of Appeal, the Application Judge erred by failing to give effect to the principle of territoriality. The principle of territoriality means that B.C. law applies only in B.C., and outside B.C. only to the extent chosen by other jurisdictions. Accordingly, the Court of Appeal held it was up to California courts to determine for themselves whether they had territorial competence over actions brought under the Act, under the laws of California. The Court of Appeal held the choice of forum provision should be enforced and entered a stay of the action.
The Supreme Court of Canada appeal hearing is tentatively scheduled for November 2016.