It has been a busy time for the Supreme Court of Canada. In a judgment on 23 June 2017, it ruled that Facebook Inc’s forum selection clause was unenforceable in a case involving the application of British Columbia’s Privacy Act. The long-term value of that judgment is, however, questionable given that the Court was split 4-3, with one of the judges (Abella J.) deciding against Facebook, doing so on a different basis to the other three who ruled against Facebook.
‘Territoriality’ plays a central role under our current paradigm of jurisdictional thinking. Indeed, a State’s rights and responsibilities are largely defined by reference to territoriality. States have exclusive powers in relation to everything that occurs within their respective territories, and this right is combined with a duty to respect the exclusive powers of other States over their respective territories.