Facebook’s Forum Selection Clause Is Unethical
Facebook’s forum selection clause in their user agreements is not ethical. I came to this conclusion based on recent events, Facebooks massive influence on the world and the surprisingly small amount of oversight afforded to them by this clause. Recent events have highlighted privacy concerns and mental health issues. I came across the Pagano Model in my Business Communication class and think it gives a good baseline for ethical behavior. (Lehman, Dufrene, & Walker, 2018, Ch. 1):
The Pagano Model offers a straightforward method for determining whether a proposed action is advisable. For this system to work, you must answer the following six questions honestly:
- Is the proposed action legal? (This is the core starting point.)
- What are the benefits and costs to the people involved?
- Would you want this action to be a universal standard, appropriate for everyone?
- Does the action pass the light-of-day test? That is, if your action appeared on television or others learned about it, would you be proud?
- Does the action pass the Golden Rule test? That is, would you want the same to happen to you?
- Does the action pass the ventilation test? Ask the opinion of a wise friend with no investment in the outcome. Does this friend believe the action is ethical?
The third and fourth question made me decide that Facebook’s forum shopping clause is unethical. I do not want this to be a universal standard appropriate for everyone. Facebook is a tool used by over a billion people. The only court that decides on its cases resides in their backyard. The data breach by Facebook has brought a lot of attention to the company recently. I believe if more people knew about the Forum Selection Cause in Facebook’s terms of agreement it would be talked about more. The data breach issue will likely be resolved in Facebook’s favor because of home court advantage. Cyberbullying is also an issue that should be addressed further by Facebook. They own other social media platforms such as Instagram that are wildly popular with children and teenagers. A single California court should not have the sole jurisdiction over what is legal for Facebook to do.
Yes, a court should enforce forum selection clauses such as the Facebook User Agreement. Facebook’suser ultimately signs on to this agreement. The clause stops a high number of law suits that would otherwise be filed all over the country. It would be very expensive for Facebook to entertain these lawsuits. If Facebook were a small business, it would be completely impossible. The latest tally is 16 court cases against Facebook according to Francesca Fontana of TheStreet. The one that concerns me the most is Zellmer v. Facebook, Inc. This case highlights biometric privacy concerns such as Facebook’sfacial recognition software for photos.
Although I think it is unethical I do understand the necessity of a forum selection cause. For every case that brings up a legitimate concern I am sure there are several more that are frivolous. My main concern is the amount of power that Facebook has. We have spent a lot of time in this country debating whether to restrict the second amendment further because of the recent shooting in Parkland High School. I would suggest we talk about the first amendment. It’s clear that mental health plays a big role in our children’s actions and we should look more closely at how their online activity affects them. Individual states should be able to address cyber bullying without going through a California court.
Yes, Facebook would be subject to the jurisdiction of every state court. I believe this to be ethical because Facebook has so much power. The regulation needs to be spread out over more than just the court in Facebook’s backyard. The average person should be able to file a grievance and not have to go all the way to California. There are clear negative effects that social media has on both us and our children. Until social media’s effect on mental health is addressed further I will continue to support more scrutiny of them.
References:
Fontana, Francesca. (2018, March 29) Lawsuits Against Facebook Over Data Privacy Issues Are Piling Up. TheStreet.
Lehman, C., DuFrene, D., & Walker, R. (2018). BCOM (9th ed.). Boston, MA: Cengage Learning.