In a recent case, the court refused to enforce Snapchat’s Terms of Service’s venue clause that states all lawsuits against the company can only be brought in California where it is incorporated. The plaintiff mother from Oregon argues that Snapchat failed to take adequate measures to protect her daughter, who was 14 when she joined the social media platform. The mother claims that her daughter started receiving sexual messages from older men, developed an eating disorder and became dependent on social media to the point of hospitalization as a result of Snap’s wrongdoings. While the court has yet to rule on the merits of the case, its decision to allow the lawsuit to proceed in Oregon highlights the challenges that companies face in enforcing ToS provisions related to safety and privacy.
Doffing v. Meta Platforms, Inc. is one of the countless lawsuits arguing that social media addicts children. Like many of these cases, it alleges that Snap “failed to provide adequate protections against harmful content; verify the age and identity of minor users; provide adequate parental control and monitoring; protect minor users from being sexually exploited and abused; design non-addictive social media products; and provide adequate notification to parents about the risky and problematic use of social media by minor users.”
Since the family is in Oregon, they filed a lawsuit in that state. But Meta tried to remove the case to California because Snap’s ToS (to which all users must agree prior to signing up) state that California is exclusive venue and California’s law govern the use of Snap. Take a look:
Nevertheless, the judge refused to move the case from Oregon ruling that, “the forum selection provision is unlawful because it is procedurally unconscionable, substantively unconscionable, and unenforceable against a minor.”
Why? Judge noted that, “there is no evidence of a mechanism that required M.K. to open the Terms of Service before clicking “Sign Up & Accept.” Nor is there any evidence indicating that M.K. actually did click on the hyperlink to the Terms of Service. The Court finds it unlikely that a minor acting without parental consent or guidance actually opened and read the Terms of Service. If she did open the Terms of Service, the Court finds it even less likely that she read all the way to the forum selection clause on page 13.
Furthermore, the Terms of Service for Snap urged adolescents to consult their parents before continuing. In this situation, the victim’s parent maintains that she has never granted permission, yet Snap has not cancelled the victim’s account. “Therefore, it seems that Snap is asking this Court to enforce a contract that Snap itself is reluctant to enforce,” according to the judge who found that Snap’s ToS shall not be enforced as a contract against a minor in this particular case. “Snap allegedly derived a financial benefit from M.K. by collecting her data for use and distribution to advertisers while M.K. became addicted to social media to the point of hospitalization. Under Oregon law, Plaintiff, in her capacity as M.K.’s parent and guardian, is entitled to disaffirm any contracts defendants claim to have consummated with her minor child.”
The case is ongoing, but it’s a good reminder that ToS agreements are not always enforceable. If you’re thinking of using a ToS agreement to protect your business, make sure to consult with an experienced attorney who can help you draft a legally-enforceable agreement. And if you’re a parent of a minor child who uses social media, be sure to talk to them about the importance of reading ToS agreements before clicking “I Agree.”
The case highlights the importance of not burying important clauses in the ToS, especially when users are minors or otherwise vulnerable/unsophisticated. ToS agreements are contracts, and if a company wants to include an important clause that would otherwise be unconscionable, it needs to take extra steps to ensure that the user is aware of it and affirmatively accepts. Failing to do so could result in the ToS being unenforceable. To learn more about how to draft ToS agreements, contact an experienced business attorney.