دانلود رایگان مقاله انگلیسی رسانه های اجتماعی جهانی در مقابل ارزش محلی: حفظ حقوق مصرف کننده محلی - الزویر 2018

ABSTRACT

This article focuses on the relationship between forum selection clauses, choice of law clauses and data protection and privacy protection. In particular, it discusses the question whether and why jurisdiction and choice of law clauses used in the terms of social media providers should not be enforced against social media users located in a different jurisdiction. The article distinguishes between the contractual, private law analysis and the application of public policy as part of the private international law analysis.The contract law analysis is centred on doctrines such as unconscionability, which in turn examines issue such as fairness and overwhelming bargaining power of one party. By contrast, the public policy analysis in private international law focuses on fundamental rights, legality of contractual clauses according to the local law of the forum and the interests of justice. It is argued here that both aspects (contractual and public policy doctrines) are paramount for achieving not only justice between the parties of a dispute but also ensuring good administration of justice in the public interest.

5. Conclusion

As the preceding discussion has shown, there are two distinct aspects to how private international law controls the enforceability of forum selection clauses: first, a contractual analysis based on unconscionability and secondly, privacy and consumer rights as an aspect of the application of public policy. While in practice both doctrines may overlap in the argumentation of the courts, conceptually it is important to make a distinction between them, for the reason that contract law is based on the free will of the parties and a respect for their negotiated agreement, which is only restricted to the extent that adhesion contracts do not give sufficient notice and/or contain unconscionable clauses. By contrast, public policy and the protection of privacy as a fundamental right override the free will of the parties in the public interest. While public policy has receded in the background for a number of years, the most recent case law is based on strong public policy arguments. It is argued here that both aspects (contractual and public policy doctrines) are paramount for achieving not only justice between the parties of a dispute but also ensuring good administration of justice in the public interest. In particular, in cases where fundamental rights such as the right to privacy are engaged, public policy should play a role in upholding local values and protecting consumers from having to litigate in distant courts under unfamiliar laws. Thus, public policy has a role to play both in respect of court jurisdiction as well as in respect of applying local (privacy) laws as mandatory laws.