Tuesday, September 3, 2024

I’ve been thinking about onerous Terms and Conditions again; the good news is it seems we might be approaching an opportunity to regain sanity where these things are concerned.  The icky news, did you see the latest from Disney and Disney+?  If you’ve ever wondered what you’re accepting when you click through and accept, this set of alleged facts will really catch your attention.

The non-Disney characters in this story are Jeffrey Piccolo and his wife Kanokporn Tangsuan.  Tangsuan, who had severe food allergies, and her husband visited the Disney World resort in Florida in late 2023.  After eating at a restaurant in the complex which they in part selected because the Disney World app denoted it as accommodating people with food allergies, Tangsuan died approximately an hour later as a result of severe anaphylactic shock after ingesting allergens in her meal.

Though the restaurant was not operated by Disney, the ground and building were leased by Disney to the operator.

When Piccolo filed a wrongful death suit on behalf of Tangsuan’s estate, Disney naturally responded that the claims were “based entirely on (the restaurant’s) alleged misconduct” but then it went a step further.  Disney cited Piccolo’s prior agreement to submit to individual binding arbitration rather than in court, for any dispute between he and Disney.  When did he agree to this?  When he created a trial Disney+ account on his PlayStation 4 years earlier.

Evidently, the language wasn’t written out in the main section of the Terms of Service or Terms and Conditions as they’re sometimes called, rather it was accessible in the body via a hyperlink to a separate Subscriber Agreement.  In that Subscriber Agreement was language that stated “ANY DISPUTE BETWEEN YOU AND US, EXCEPT FOR SMALL CLAIMS, IS SUBJECT TO A CLASS-ACTION WAIVER AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION”.

We of course encounter these types of agreements routinely as consumers. And let’s be honest, usually we just click through them in order to finish the task.  I’m guessing most of us never thought that by signing up for a trial version of a streaming service, we would also be waiving our right to trial in a wrongful death suit, for a death four years into the future.

But my point today is that your business gets presented with these types of agreements frequently too.  In that case, you click through and agree while only skimming the language, at your company’s peril.  Or the peril of your employees.  Or the peril of your customers.

It’s a long-standing practice to minimize the necessity and letter of a sales agreement, when civil contracts are produced for signature at the end of a sales process.  As a buyer you’ve done due diligence; you’ve selected a product or service and committed to the expenditure.  Yet often, when you ask to spend some time with the contract you’re told some version of “it’s just a roadmap for what would happen if we don’t stop getting along, and we aren’t going to do that”.  I would counter that notion with the thought that right now while we are getting along is EXACTLY the time to scrutinize the steps that will occur if we stop getting along in the future.  The slope can get even slipperier when the civil contract is presented via click and accept digital format only.

Too often, those words, commas, semicolons and hyperlinks are only scrutinized after an incident has occurred, and only then do you realize what you opted in for.  You might have signed away forever and royalty free perpetual use of data you once owned…or you might sign away your ability to sue for wrongful death.  All because you just wanted a streaming service, a signing service, a cheaper way to do business.

Until Next Time,

Mary Schuster
Chief Knowledge Officer
October Research, LLC