The tales of Facebook’s jurisdiction: Nudes, Cookies and Schrems

By EDRi · February 24, 2016

Which law governs Facebook activities? Can any Facebook user bring a case against the social media platform anywhere in the European Union? These are some of the questions that are starting to be resolved in 2016, 12 years after the launch of Facebook.

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As everyone probably knows, Facebook legally established its non-US headquarters in Ireland. Fewer users know that the opening an account on the platform amounts to a contract with Facebook Inc. registered in Menlo Park, making California the only jurisdiction under which cases against Facebook can be brought. Or at least, this is what Facebook argued. However, a French Court ruled this month that it has jurisdiction to rule on a case against Facebook.

The case, brought in 2011, was initiated by a French user whose account had been censored by Facebook after posting a image of a 19th century painting by realist painter Gustave Courbet, “The Origin of the World”. The French Tribunal de grande instance and Paris Court of Appeal have found Facebook’s clause that forces all users to agree that any litigation must be based in California to be “abusive” and therefore declared it void.

This decision sets an important legal precedent which could potentially impact other pending cases against Facebook in the European Union. Facebook is for instance seeking the invalidation of a Belgian Court decision from last November requesting the social media to stop tracking users. According to Facebook, the Belgian Court did not have the jurisdiction to judge this case as its headquarters are located in Ireland. Facebook also added a linguistic element to this jurisdiction battle by claiming that the Court could violate Belgian law by using the word “cookie” in the ruling, as this word does not exist in French. It is true that French people tend to translate every single English word, but this might be one of the few exceptions, as “cookies” haven’t become “madeleines” in French, at least not yet. Soon, perhaps, Facebook’s reliance on US jurisdiction will soon be little more than remembrance of things past.

Dispute over jurisdiction also continues in Austria where Facebook’s best friend, Max Schrems is seeking to bring a class action case against the company. This case, in which Facebook argues that the entire lawsuit cannot is neither admissible in Vienna, nor in fact anywhere else in the world, has now reached the Austrian Supreme Court.

Facebook is therefore arguing in France that it can only be judged in California, in Belgium that it can only be judged in Ireland and in Austria that no-one can bring class action cases at all. The saga continues.

Ordonnance du juge de la mise en état du 5 mars 2015 – Tribunal de grande instance de Paris (in French, 05.03.2015)

Facebook appeals Belgian cookie rule because it says ‘cookie’ (28.01.2016)

“Facebook Class Action” reaches Austrian Supreme Court

(Contribution by Estelle Massé, Access Now)