UK citizens can’t sue Facebook in the US, judge rules

United Kingdom citizens cannot sue Facebook in U.S. courts for data privacy violations, a federal judge in San Francisco ruled Tuesday.

Despite claims from users that they were forced to agree to new forum selection rules to undermine the lawsuit over leaking data to Cambridge Analytica, U.S. District Judge Vince Chhabria found the tech giant adopted the terms to comply with the European Union's General Data Protection Regulation. They prohibit British residents from pursuing litigation against the California-based company outside their home courts.

"This was not an attempt to undercut the class action," he wrote. "The new provision was required by European law."

Facebook introduced new terms of service in April 2018 to all European users, barring them from suing the social network in U.S. courts. It contained a mandatory choice-of-law clause that requires them to bring claims related to their use of Facebook under U.K. or Irish law.

Two U.K. citizens were added to an amended complaint after the new rules were unveiled. Plaintiffs' attorneys argued the new forum selection rules do not apply to pending lawsuits. In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 18-md-02843 (N.D. Cal., filed June 6, 2018).

In an order dismissing the newly added plaintiffs, Chhabria ruled the case will proceed as a proposed class action solely on behalf of users in the U.S.

While prior terms contained a California forum selection clause, the new version applies to any dispute that arises out of Facebook's services. It further specified that it will "supersede any prior agreements," Chhabria noted.

"This language makes clear that the new forum selection provision is not limited to disputes that might arise after its enactment; it covers disputes that have already arisen," he wrote. "Thus, the fact that [plaintiffs] are complaining of privacy violations committed before the new provision took effect does not prevent it from applying."

Facebook emphasized due process concerns over its ability to conduct discovery and enforce judgments abroad. It noted, for example, that U.K. witnesses could not be compelled to appear in California court, its lack of subpoena power hamstringing discovery and that a judgment would not bind absent U.K. class members.

Plaintiffs' attorneys countered that the concerns are speculative and overblown and that the Northern District federal court is the preferred forum because Facebook is based in California. They also claimed that the company has not assented to U.K. jurisdiction, citing a case against Apple in which a federal judge rejected dismissal because the company would not concede that it's amenable to litigation outside the U.S.

But Chhabria found the 2018 terms contain a mandatory choice-of-law clause that requires the users to sue under U.K. or Irish law. He said they are best positioned to sue in England, Wales or Ireland.

"This case has hardly been undercut," the judge wrote. "It is only the alleged violations against U.K. Facebook users that will not be litigated here. And these U.K. Facebook users, thanks to the new forum selection clause, can now pursue their claims against Facebook in their home courts in the U.K."

A group called Facebook You Owe Us sued the tech giant last month in the U.K. on behalf of users in England and Wales over the Cambridge Analytica scandal in which the data-mining firm obtained 87 million users' private information.

Last year, Chhabria rejected Facebook's arguments that plaintiffs did not suffer real world harm by having their data shared with third parties with consent.