In Facebook Case, French Courts Find Terms of Service Violate Consumer Law

February 24, 2016

Facebook Gavel social mediaTwo French courts recently ruled that Facebook’s Terms of Service violate French consumer protection laws.  This decision could undermine terms of service used by a variety of online service and content providers throughout Europe, and potentially in other parts of the world.

A teacher in France posted on his Facebook page a photograph of a painting depicting a female nude which hangs in the Musee d”Orsay in Paris.  Facebook determined that the image violated its content policies and removed it.  The teacher sued Facebook in France, claiming that removal of his material by Facebook constituted censorship illegal under French law.

Facebook argued that the teacher could not sue in France.  The company argued that its Terms of Service require all users to raise all claims against the company in California.  The trial court in France ruled against Facebook.  The court concluded that the provisions in Facebook’s Terms of Service requiring all consumer actions to be conducted in California was an abuse of consumers and was unreasonable, and thus illegal under French consumer protection law.  Facebook appealed the lower court decision, and the appellate court affirmed the lower court’s ruling.

Matsuura Blakeley BannerThe forum selection requirement Facebook sought to enforce in this case is extremely common, present in the online content and service provider terms of service of many American companies.  By finding this widely applied provision to be a violation of French consumer protection laws, the French courts appear to have opened the door for many consumer claims against those companies in France and potentially throughout Europe.

The French action may also inspire greater judicial oversight of other widely used terms of service provisions.  For example, many terms of service require that all disputes should be resolved through arbitration instead of judicial or regulatory action.  It is conceivable that some courts could ultimately determine that mandatory arbitration clauses also represent unreasonable abuse of consumers.

Defenders of standard terms of service provisions that work to the advantage of businesses often contend that those provisions are necessary in order to provide incentive for the businesses to expand their offerings and to extend their service reach.  They also argue that the provisions are needed in order to keep business costs low.

Critics of the standard provisions often contend that they are now out of control, covering an overly broad range of topics and establishing unreasonable and perpetual disadvantages for consumers.  Anyone who actually reads some of these terms of service from beginning to end quickly understands the concerns expressed by the critics.

It is important that courts, regulators, and consumer advocates continue to review and act upon commercial terms of service to ensure that they are written and enforced in a manner which is fair to consumers.  The willingness of the French courts to perform this function should be applauded and provides an excellent model for authorities in other jurisdictions.