Disney’s Magical World of Terms and Conditions

A married couple, one of whom, a doctor, is allergic to nuts and dairy products, sit down to eat at a Disney World restaurant. Following her usual routine, she reports her allergies to the staff and after being “unequivocally guaranteed” that the food did not contain allergens, she ate it, began to feel unwell, then administered an EpiPen to herself that she was carrying, but had to be transferred to hospital, where she died from complications caused by nuts and dairy products in the food that had been served to her.

Logically, the husband sued Disney, which first tried to avoid its responsibility by saying that the restaurant was a concession, and that it had an owner-tenant relationship with it. Then the company pretended to settle out of court via arbitration, because the husband had signed a clause waiving his right to take Disney to court. When had he signed it? Not when buying tickets on the website, but several years earlier, in 2019, when he accidentally activated a Disney+ subscription on his Play Station that he didn’t renew after the free trial ran out. In the terms of service of that subscription, there was a clause buried in the small print in which the user agreed to settle all possible disputes against the company through arbitration.

Like everybody else, the husband hadn’t read such terms of service, because they are always extremely long, written in legalese that is difficult for the layperson to understand, and that are simply presented with a box at the end where they give you the option to accept or cancel, knowing that if you cancel, you will not get the service you wanted. Little wonder that “I have read and understood the terms of service” box is often described as the biggest lie on the internet.

Let’s be honest, in the terms of service that we sign every day by clicking on a box, there could well be a clause hidden away committing us to sell our first-born to the company, and practically no one would notice it. But in this case, it was also crystal clear that the Disney+ terms of service referred only to the streaming service.

I can’t understand what sort of company would consider arguing such a clause in a situation in which somebody is taking legal action after the perfectly avoidable death of his partner. Disney has finally given up this line of defense, accepting that the case will be heard before a court. In the process it now heads the list of companies that impose abusive use of the terms and conditions that we accept every time we access a service through the web.

At some point, the courts are going to have to accept that activating an app or other digital service cannot be regulated simply by forcing the user to accept terms of service that no one in their right mind can read or understand without either dedicating a completely unjustifiable level of attention and knowledge to it or hiring a legal team. With this in mind, the EU’s GDPR now requires companies to present their terms of service in a format the average person can understand.

In short, one thing is legal vocabulary that avoids ambiguities; it is quite another to use it to slip in any clause in the form of fine print that in many cases is completely unfair. We can only hope that this tragedy gets the attention it deserves, and raises awareness about the long-standing problem of terms and conditions.

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This post was previously published on Enrique Dans’ blog.

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