There is a rather odd article on the French deciding that Facebook contracts cannot be under California law and have to be under French law.
I have to say that I am a tad conflicted on this point.
The contract is clear and offers, for no fee, a service to anyone that wants it if they AGREE to be bound under California law for that contract. Why the hell should the French or anyone feel that is unreasonable. It is a free service, and offered freely for anyone to take or not take. If someone does not like being bound by California law, simply do not take the service.
The specific case, which is not yet decided, is over Facebook removing an image that breached their decency terms. But Facebook is their web site, why the fuck should they not have final say on what is on that web site. It is not like the "customer" paid them to display that post and they broke that contract. In fact, the "customer" broken the contract by posting the image.
Now, I wonder how it will play out in French courts. I hope there is some sanity that the customer in this case did breach the terms, even under French law, and that Facebook are entitled to control what is on *THEIR* web site. We'll see.
The whole thing does raise a lot of issues though.
Choosing jurisdiction is one - it is not unusual for a contract to define the jurisdiction and ultimately it only makes sense if that is defined as one place, and so one party to the contract defines it. Ultimately if the other party is not happy then they should not enter in to that contract.
The problem is "consumers are assumed to be stupid" and so, even if they agreed something, then maybe they should be protected from having done so. The solution, in my opinion, is more education, not stitching up companies when consumers are muppets. But that is just my view. I want consumers to make good, informed, choices.
But I wonder if this ruling has other problems. Is simply accessing one of my web sites that provides some useful "service" for free, something which has some implied "contract"? I have some useful sites like http://find.me.uk/ for example. I do not try to impose any contract and hence any jurisdiction on disputes over contract. But is there one, implied. And is it one that could be deemed under the law of some foreign country which has some Draconian rules and could apply some penalty if the site is down for a day? How can I tell.
Now, for my site, it may be better if I have a note stating it is a non-contractual arrangement. Such things are possible, and avoid any issue of jurisdiction as no contract disputes can exist. Maybe Facebook should try that.
Though I suspect for Facebook this will simply mean they have some French compatible contract terms drawn up under French law, and then they are covered.
Even so, this does raise other issues - at some point an organisation like Facebook or Google or Twitter reach a level globally and/or even within one country when maybe the usual rules need to stop applying. The "don't agree to Facebook terms" option stops being sensible when one would fall out of all social circles by doing so. At that point, maybe new rules need to apply somehow. It is, perhaps, the price of success.
P.S. I am told that one can have a contract under one countries governing law, and another countries jurisdiction, just to add to the fun. Thanks Neil.
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