The Quebec Superior Court in St-Arnaud c. Facebook inc. , 2011 QCCS 1506 (CanLII) has declined jurisdiction in a proposed class action against Facebook relating to breach of privacy claims under Facebook’s terms of service.
The petitioner, St. Arnaud, brought a motion to Authorize the bringing of a Class Action and to Ascribe the status of representative, and later moved to amend to principally limit the proposed Class Action to Quebec residents only. Facebook Inc. responded with a De Bene Esse Amended Motion for Declinatory Exception based upon the lack of jurisdiction of the Superior Court of Quebec and upon the fact that the Superior Court is forum non conveniens.
The petitioner alleged that:
“On February 4, 2009, without proper communication to or agreement by its Users, Facebook revised its Terms of Service, asserting broad, permanent, and retroactive intentions to reveal User’s information, even as to Users who deleted their Facebook.com accounts. The Respondent stated it could make public a User’s “name, likeness and image for any purpose, including commercial and advertising.” Having met with numerous objection by Users and threatened action by U.S. federal government regulators, Facebook withdrew the proposed changes and replaced them with changes announced variously on or about April 24, 2009, on or about November 19, 2009 and on or about December 9, 2009.
12. These changes announced variously on or about April 24, 2009, on or about November 19, 2009 and on or about December 9, 2009, and implemented by Facebook on or about said dates made the following categories or personal data “publicly available information“:
i. Users’ names;
ii. profile photos;
iii. Friend Lists;
iv. pages Users are fans of, including controversial political causes, organizations, individuals, and products they support;
vi. their geographic regions; and
vii. networks they belong to.
St-Arnaud alleged that Facebook violated the User’s privacy and misappropriated their personal information through its application programming interface, noting:
 Under the revised policy setting, Facebook has eliminated the one-click option and substituted it with multiple check boxes that the Users must pre-select if they wish to refrain from sharing the corresponding information.
 It is useful to quote the following paragraphs of the Amended Motion to Authorize the bringing of a Class Action and to Ascribe the status of representative:
« 27. The Facebook altered privacy rules do not properly or reasonably protect Users’ personal information or present Users with realistic options to restrict third party access to all User information through the Facebook Platform. To block the more than 350,000 applications form accessing their information, Users would have to perform the steps described above (…) for every single application.
28. The controls offered to the Petitioner and Group Members by the Respondent require Users to search the Application Directory and visit the application’s “about” page. Even assuming a User has a limited number of applications, locating and correctly setting the myriad privacy settings of each such application is a daunting and formidable task.
33. Facebook profits form their aforementioned misappropriation (…) of Users’ personal information, and violation of Users’ privacy. Such conduct generates revenue primarily through various types of advertisements which are targeted to Users based on their profiles and information. The data collected from its Users is the key commercial asset Facebook employs to sell advertising and drive traffic to the Facebook.com website.»
Facebook relied upon the exclusive jurisdiction clause under section 15.1 of the Terms which reads:
« 15. Disputes
1. You will resolve any claim, cause of Action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebbok exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.»
The Quebec court emphasized the consensual nature of joining Facebook and the fact that all Users continue to be bound by the TOS even when amended or updated. Each time Facebook Uses want to log on to Facebook, they need to either remain logged on or access the website login page, which always includes a link to the Terms included at the bottom of every page available on Facebook, including the User’s own personal page. Hence, article 3148 C.C.Q. did not apply as the petitioner was bound by the exclusive jurisdiction clause.
The Quebec court also rejected St-Arnaud’s consumer protection arguments under Articles 1379, 1384 and 3149 C.C.Q. and held:
 Although, there exists an adhesion contract, Facebook does not have a consumer relationship with its Users.
 Access to the Facebook website is completely free.
 Therefore, there exists no consumer contract when joining and accessing the website, because it’s always free.
 A consumer contract is premised on payment and consideration. It must be an onerous contract as written by the Author Nicole L’Heureux.
« Le mot «service» n’est pas défini dans la L.p.c., on doit lui donner son sens courant d’exercice d’une activité, d’un travail, acheté ou loué pour le bénéfice d’une personne, ou d’une prestation fournie en relation avec la vente ou la réparation d’un bien. Le service se classe dans la catégorie des biens meubles incorporels. On le définit en effet comme «toute prestation qui peut être fournie à titre onéreux mais qui n’est pas un bien corporel. (…)»
 Users pay Facebook nothing at all. In joining and accessing the website, Users:
« (a) do not pay Facebook;
(b) do not undertake to pay Facebook at a later date;
(c) do not undertake to remain Users for any period of time;
(d) do not undertake to post anything on the Website;
(e) do not undertake to encourage friends or family to join the Website; and
(f) do not undertake to promote the Website in any way.»
 Article 3149 C.C.Q. is clearly not applicable to the present case given that we are not dealing with a consumer contract.
Relying upon Justice Cournoyer’s decision in Acasti Pharma Inc. v. US Nutraceuticals, I.I.c. (Valensa International) (2011 QCCS 140 (CanLII), 2011 QCCS 140 (January 24, 2011), par. 136 to 145), Justice Deziel concluded that forum non conveniens doctrine also did not apply under Article 3135 C.C.Q.