“I read and I accept”: beyond giving away your data

In a discussion promoted by the recent launch of the app in Brazil, we have already addressed  the estimation in the terms and conditions of use, the delivery of data by users to large companies such as Facebook, Google and Microsoft, in the blog. The problems of consentiment with these terms, however, is not only related to data privacy and protection. Although the “Marco Civil da Internet” (brazilian internet legislation) establish that the acceptance of the terms of use should be free and conscious of the transparency pressure that businesses suffer, the user is often also unaware of the existence, in the terms and conditions of use, about the forum agreement.

The forum agreement

The forum agreement look after the pact between the parties – the user and Twitter, for example – by which is defined the forum, in other words, the competent court to decide any disputes that may appear between them. The forum agreement is acknowledged as an expression of the free will of the parties and relates to the validity, interpretation and effects of the contract.

The subjugation of controversies to particular jurisdiction expressed in the contract of the Forum Agreement, can manifest itself in two ways: private and attributive. In the first one, the agreement removes from a jurisdiction the power to treat a cause and delegate the other. In the second one, the jurisdiction is defined for a given court, initially without competence to deal with the dispute.

There are several examples of Forum Agreement within the Internet. In the Statement of Rights and Responsibilities of Facebook, the California courts are elected:

“You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims”

Now Google terms of service include the possibility that the Forum Agreement can not be accepted in certain countries, but also define the jurisdiction of US courts as a general rule :

“The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that the laws of California, U.S.A., excluding California’s choice of law rules, will apply to any disputes arising out of or relating to these terms or the Services. Similarly, if the courts in your country will not permit you to consent to the jurisdiction and venue of the courts in Santa Clara County, California, U.S.A., then your local jurisdiction and venue will apply to such disputes related to these terms. Otherwise, all claims arising out of or relating to these terms or the services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.”

Thus, for such predictions in terms of use, companies seek to modify the general rules of competence, requiring the user to use the forum that most benefit them as use of service condition. In practice, when the user declares his consent, he would be agreeing to award any conflict with these big companies in the United States. In France, the forum agreement of the terms of Facebook reached the courts in conflict between the company and Professor Frederic Durand .

Frederic Durand vs. Facebook

In 2011, Frederic Durand published on his Facebook profile the paint ” The Origin of the World ” (1866), by Gustave Courbet. Facebook found that the content of nudity violated user’s statement of rights and suspended Frederic page. In the same year, Durand filed towards the French courts a lawsuit against Facebook France, claiming affront to their freedom of expression and doubly requiring the reactivation of the account and the payment of compensation in the amount of 20.000 euros for moral damages, as being considered victim of “humiliating , brutal and unjust ” censorship.

In defense, Facebook throughout the process maintained that this forum agreement in the Terms of Use, with whom Frederic Durand had agreed, exclude the jurisdiction of the French courts. In this sense, the attributive jurisdiction clause would oblige the parties to resolve any conflicts in the courts of California to the detriment of any other jurisdiction.

The French courts considered as abusive the forum agreement aimed by Facebook  in the context of a consumer relationship with the user for recognizing the great imbalance that it would cause between the parties with the respect to access to justice. That’s because, while Facebook has millions of users in France and maintains office and legal representation in the country, Frederic Durand can not afford to litigate abroad. In this sense, the courts did not receive the defense of Facebook and kept the French competence for the case, on the grounds that the forum agreement would imply denial of access to justice to the user .

In Brazil

In Brazil, the forum agreement is permitted by legislation, supported by the freedom of choice. The new brazilian Civil Procedure Code recognizes the effect of such clauses to assign exclusive jurisdiction to the selected court. The pact, however, is subject to formal and material control of brazilian justice, which must meet the requirements of existence, validity and effectiveness of the juristic act. In this sense, a forum agreement can only be considered valid if not abusive in relation to one of the litigants or to the effects of the dispute parties. No attributive jurisdiction agreement, thereby, will have applicability in Brazil if generates imbalance between the parties and undermine access to justice for one of them.