PUBLIC POLICY IS AN UNRULY HORSE AND THE LAW OF CONTRACT IS AN ASS:

A COMMENT ON DOUEZ V FACEBOOK, INC

Abstract

Online boilerplate contracts pose fundamental challenges to the traditional principles of contract law. Can a contract characterized by the complete absence of bargaining, choice, and the possibility of amendment be meaningfully characterized as a contract? Do consumers have a real choice as to the non-negotiable terms and conditions (including litigation avoidance clauses) presented by powerful digital platform firms like Google, Twitter, and Facebook? How far should the courts go in regulating these boilerplate arrangements, particularly in the abiding absence of legislative direction or reform?

In Douez v Facebook, Inc, the Supreme Court of Canada considered for the first time the enforceability of a forum selection clause in an online boilerplate consumer contract. The Court’s answers—rendered in three sets of reasons—illustrate the tension between not only legal doctrine and public policy, but also between the courts and legislatures as sites of public norm generation and legitimation. The Court’s reasoning in Facebook continues a recent trend in its jurisprudence of blurring the lines between the application of doctrine and public policymaking. The result, quite apart from the equities or merits of the Court’s decision, furnishes further proof that public policy is not only an unruly horse, but that it is also capable of making an ass out of the law of contract.