The origin of the world

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Isabel Lorente Martínez – Abogada del Ilustre colegio de Abogados de Murcia

– Lawyer – Bar Association Murcia, Spain

Gustav Coubert had very clear what was the origin of the world. With his famous hyperrealistic picture, he provoked a ddp impact on the society of his age and still at present this is a masterpiece that continues without making anybody indifferent.

A few months ago, the account of a French teacher, user of Facebook, was closed for showing Gustav Coubert’s famous picture in his wall and for encouraging his followers to see the real picture. Facebook Inc. thought that it broke one of the Facebook’s conditions of use that any user signs with Facebook Inc. when an account is open in this social network. In paragraph 3rd of the conditions of Facebook’s use, which is the relative to security, it says expressly: “You will not post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence”. This teacher asks to re-open the Facebook account, and in front of Facebook’s denial, he decides to come to the French courts and to sue Facebook.

The question arises spontaneously: do the French courts have jurisdiction to dedide the merits of the case?

Before giving an answer to this question, it is necessary to stress that the French teacher, as any user without habitual residence or headquarters in the US who an account in Facebook, signs a contract not with Facebook Inc. with headquarters in Silicon Valley, USA, but with Facebook Ireland Limited. It may be seen in the condition of Facebook’s use number 18.1: “If you are a resident of or have your principal place of business in the US or Canada, this Statement is an agreement between you and Facebook, Inc.  Otherwise, this Statement is an agreement between you and Facebook Ireland Limited.  References to “us,” “we,” and “our” mean either Facebook, Inc. or Facebook Ireland Limited, as appropriate.”

The legal instrument regulating the determination of jurisdiction in this case is Council Regulation (EU) N º 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (= Brussels I bis Regulation). Which of the grounds of jurisdiction contained in the Brussels I Regulation can be used by the French court to affirm their jurisdiction?

When we make a contract with Facebook, we do it by means of an adhesion contract: the contract has been already written in all its clauses by Facebook. The adherent accepts the contract and signs it or does not accept it and does not sign it. The adherent cannot introduce «changes» in the clauses of the contract: » it is take it or leave it”. On the other hand, it is necessary to determine the nature of this contract of adhesion. In fact, , tehre are several doubts because the contract may seem a contract for the provision of services or a consumer contract.

Fristly, there must be remembered that a solid case law by the ECJ underlines that a person should be considered as a consumer if he-she acquires goods or services «for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7» (=. 17.1 in primis RB I bis). The French teacher comes into a contract with Facebook to use the network with regard to activities connected with his leisure and also to his activities as a teacher. Nevertheless, in spite of the fact that the use of Facebook by the French teacher presents a clear connection with his profession, the teacher is not a professional who enriches himself in an autonomous and independent way. Definitively, the teacher uses Facebook to promote his education but he is not a businessman, he is not the holder of a «company» who uses Facebook to increase his income.

The teacher is an individual, a consumer for the purposes of the Brussles I Regulation recast. On the contrary, Facebook is a company, with headquarters in Silicon Valley. A company that directs his contents and advertising to many countries in order to capture users. The more users it captures, the more income it obtains. Facebook is a professional for the purposes of the Brussles I Regulation recast.

Therefore Facebook fulfills with the Stream of commerce criterion and also with the Doing Business rule. That is to say, Facebook directs its contents to certain countries to capture users (= Stream of Commerce rule) and also develops constant activities in such countries even if Facebook does not have its headquarters in those countries (= Doing Business rule). The French teacher receives the Facebook’s advertising in the State of his domicile, that is to say, in France. Art. 17.1.c RB I bis declares that the consumer who has access to an offer through the Internet in the country of his domicile is a «passive consumer» (= STJUE 11 July 2002, as. C-96/00, Gabriel).

As a consequence, the French teacher must be considered to be a «passive consumer». Art. 17.1 c) of RB I bis, which contains a protection groudn of jurisdiction for consumers, applies: “in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities”. Therefore, the teacher, to whom Facebook denies the right to reproduce a copy of «The origin of the world» in his Facebook’s wall, is allowed to sue Facebook before the courts of the Member state of his domicile, in this case, in France.

The adventure does not finish here, because… What about the choice of court clause included in the contract of adhesion with Facebook, paragraph 15 of the conditions of Facebook’s use? The text of the above mentioned clause is the following one: “You will resolve any claim, cause of action or dispute 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. 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.”

In order to consider if this choice of court clause is valid or not, Art. 19 RB I bis declares that the choice of court agreement operates only if the agreement: «(1) which is entered into after the dispute has arisen; (2) which allows the consumer to bring proceedings in courts other than those indicated in this Section; or (3) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State».

Clarified that the French courts are competent to hear the claim of the teacher against Facebook, it is a moment now to approach the question of the Law applicable to the controversy. Art. 6.1 of Council Regulation (EC) n º 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to the contractual obligations (= Regulation Rome I, in forward RR I), must be considered. In this case, French Law applies. It is true that a choice of law clause appears also in the contract of adhesion with Facebook. Nevertheless, the effects of the above mentioned clause are limited by Article 6.2 RR I. That is to say, the contract is governed by the Law chosen by the parties providing that the above mentioned election fulfills with some requirements: “Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1”. Therefore, if the Law chosen by the parts (= Law of California) offers a legal protection to the consumer who turns out to be lower than the one that there offer the compulsory provisions of the Law of the State of the habitual residence of the consumer (= French Law), the Law chosen b the parties will not apply to the contract. The Law that governs the contract is French Law. That is the Law that would be applicable to the contract in the absence of choice of law by the parties.

In this case, the question of knowing if the freedom of expression as a fundamental right applies to the legal relationship between Facebook and the French teacher, arises. Actually, Drittwirkung’s question arises here. To settle this problem, French Law is going to decide if freedom of expression applies also in private contracts between individuals or not. The particular circumstances of the specific case should be taken into account.

In conclusion, if we want to open a Facebook’s account we do not have other option than accepting the terms of the conditions of use mdae by Facebook. This is what the Americans call the principle of «the freedom not to contract». A principle applied by the American companies wolrdwide. However, that does not mean that any user of Facebook remains legally helpless. When a user of Facebook comes into an agreement with this company, this contract it is doubly limited: 1. By the Brussels I regulaion recast for the purposes of jurisdiction. 2. By Rome I Regulation with regard to the settlement of the applicable Law.

Nothing is what seems. Never. The clauses of a contract of adhesion are not valid for the mere fact that they are in writing and have been signed by a consumer. American companies try to capture European consumers. They offer services that only can be enjoyed if its pre-designed contracts are accepted by consumers.

The main mission of the best legal experts specialized in private International Law is to unmask appearances. In this case, the choice of court and choice of law clauses should be regarded as toxic since they have not been negotiated by the company and the consumer, in conditions of equality. Welcome to Europe. Welcome to the UE Private international Law.

Murcia, Spain 16th may 2015.

Isabel Lorente Martínez

Lawyer – Bar Association Murcia, Spain

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