John Enman-Beech, ‘When Is a Contract Not a Contract?: Douez v Facebook Inc and Boilerplate’

ABSTRACT
With Douez v Facebook Inc, the Supreme Court of Canada has started to digest the implications of standard form contracts, or boilerplate, in the on-line consumer market. In this case, four of a panel of seven judges ruled that a forum selection clause in Facebook’s ‘terms of use’ could not be enforced to stay a privacy class action brought against Facebook in British Columbia. These four judges applied several different doctrines, including unconscionability and public policy, but considered the same factors and got to the same results. The factors included the inequality of bargaining power between consumers and Facebook, Facebook’s on-line ubiquity, lack of an opportunity to negotiate terms, that forum selection clauses implicate the public good of adjudication, and the quasi-constitutional status of the privacy rights being litigated. While the scope of the decision may be limited by the last two factors, Douez represents an update of the court’s understanding of digital boilerplate in light of contemporary economic work. I suggest that an expansive reading of the court’s decision provides a useful framework for evaluating boilerplate going forward, a contractual analysis that recognizes mass digital standard forms’ public importance.

Enman-Beech, John, When Is a Contract Not a Contract?: Douez v Facebook Inc and Boilerplate (June 1, 2017). (2018) 60:3 Canadian Business Law Journal 428.

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