Amparo Directo en Revisión 5069/2023 decided by the First Chamber of the Supreme Court of Justice of the Nation, under the presidency of Justice Jorge Mario Pardo Rebolledo, dealt with a conflict related to the jurisdictional competence in cases of foreign digital platforms operating in Mexico, specifically in relation to the right of access to justice and the validity of express submission clauses.
The case arose when an individual filed a lawsuit in Mexico against a Spanish company, a Sole Proprietorship Limited Liability Company that operates a wedding services website, for moral damages after being rejected as a service provider on the platform. The lawsuit was filed in a civil court in Mexico City. However, the company argued that according to a clause included in the website’s terms and conditions, all disputes had to be resolved in the courts of Barcelona, Spain
The Eighth Civil Chamber of the Superior Court of Justice of Mexico City upheld the jurisdictional exception and dismissed the case. The plaintiff filed a direct amparo claim, arguing that the company indeed conducted business in Mexico, had offices in Mexico City, and operated a website under the “.mx”; domain, which, in his view, was sufficient for it to be considered domiciled in the country under Article 33 of the local Civil Code. They further claimed that forcing them to litigate abroad violated his constitutional right to effective access to justice. The company, in turn, filed an adhesive amparo, insisting on the validity of the jurisdiction clause and asserting that the plaintiff had implicitly accepted it by agreeing to the terms and conditions and using the site.
The First Chamber took up the case and conducted a thorough analysis. It confirmed that there were indeed grounds to consider that the company was conducting commercial activities in Mexico, potentially opening the door to jurisdiction by local courts. Among the relevant factors was the fact that the platform operated under the “.mx” domain, which is a country code Top-Level Domain (ccTLD) reserved for Mexico. The plaintiff claimed this created sufficient territorial connection.
However, the Court clarified that the use of a “.mx” domain by itself was not enough to prove commercial activity in Mexico. While the domain is associated with Mexico and requires authorization for use, what matters is not only the domain but whether legal or commercial acts are actually carried out in the country. In this case, the company indeed had a presence and operations involving Mexican providers, which was considered more relevant than merely using the domain.
The Court also addressed the issue of implied digital consent. It accepted that the plaintiff had agreed to the site’s terms and conditions by using the platform, which included a jurisdiction clause favoring
Barcelona courts. However, it held that such a clause was invalid in this specific case, for the following reasons:
- It was included in an adhesion contract with no opportunity for individual negotiation.
- It imposed a disproportionate burden on the plaintiff by requiring litigation abroad, involving high costs and procedural hurdles.
- It created an imbalance between the parties, as it involved an individual versus an international company with greater legal and financial resources.
The Court stated that jurisdiction clauses in digital environments can be valid, but only when they do not infringe upon fundamental rights such as access to justice, and as long as there is a fair balance between the parties. The use of technology cannot justify a complete waiver of effective judicial protection.
Therefore, the First Chamber resolved to overturn the Collegiate Court’s ruling, dismissed the company’s adhesive review, and ordered the case to be returned for a new decision in line with these criteria.
The Court made it clear that foreign platforms operating in Mexico, even digitally, may be subject to national jurisdiction, and terms of use cannot be imposed to the detriment of the user when they disproportionately restrict access to justice.
The case also deepens the notion of implied digital consent, establishing limits when such contracts create unfair or abusive situations.
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