Court Invalidates Agreement Governing Toyota’s Online Prank Contest — Duick v. Toyota
[Post by Venkat Balasubramani]
Duick v. Toyota, B224839 (Ca Ct. App.; Aug. 31, 2011)
Toyota and Saatchi & Saatchi ran a marketing campaign where a visitor to the Toyota Matrix website could designate a separate person who would receive prank emails and messages. Here is how the court describes the campaign and Duick’s (the plaintiff) experience:
During the campaign, any visitor to the Toyota Matrix website (“player 1”) could designate another person (“player 2”) for participation in the Your Other You “interactive experience.” Player 2 would then receive an email purportedly from player 1, inviting player 2 to click a hyperlink that was in some manner “identified with Toyota.” The link would direct player 2 to a web page entitled “Personality Evaluation.”
….
[Duick played the role of player 2, and] later began to receive emails from an individual identifying himself as “Sebastian Bowler.” The text of the first email reads, “Amber mate! Coming 2 Los Angeles Gonna lay low at your place for a bit. Till it all blows over. Bringing Trigger.” Duick received another email from Bowler the following day, accurately stating her previous home address, describing it as a “Nice place to hide out,” and advising her that “Trigger don’t throw up much anymore, but put some newspaper down in case.” . . . . Additional emails from Bowler to Duick over the next few days purported to describe his cross-country journey by car to visit her, including photos and videos of his travels and references to his efforts to evade law enforcement . . . . The final email included a link to a video revealing that Bowler was a fictional character and that the entire sequence of emails was an elaborate prank, all part of an advertising campaign for the Toyota Matrix.
The whole thing sounds clever in a Blair Witch Project sort of way, but I’m guessing neither Toyota or Saatchi & Saatchi spent much energy having their legal departments review the contest. Even a fairly risk-tolerant legal department would have flagged this as a marketing campaign that has the potential to go south, regardless of the technical legality of it.
Anyway, Duick asserted claims for emotional distress, negligence, and false advertising. She sought the respectable sum of $10,000,000 in damages. [I can just picture Duick’s lawyer mimicking Dr. Evil from Austin Powers when he or she is talking with Duick about what damages figure to include in the complaint.] Defendants moved to compel arbitration. The court rejects their request. Not only does the court reject defendants’ request to compel arbitration, the court nukes the entire set of contest terms.
The court says that Duick was duped as to the nature of the agreement:
A person in the role of player 2, such as Duick, could not access the terms and conditions without first clicking “Begin” on a webpage entitled “Personality Evaluation,” created by defendants. The terms and conditions themselves were entitled ‘Personality Evaluation Terms and Conditions.’ Defendants thereby led Duick to believe that she was going to participate in a personality evaluation and nothing more. In particular, a reasonable reader in Duick’s position would not have known that she was signing up to be the target of a prank.
Here is what the online terms said:
You have been invited by someone who has indicated that he/she knows you to participate in Your Other You. Your Other You is a website provided by [Toyota] that offers you . . . an interactive experience. . . . If you review and agree to the Terms and Conditions detailed below . . . you may participate in a 5 day digital experience through Your Other You. . . . You may receive email messages, phone calls and/or text messages during the 5-day experience. . . .You understand that by agreeing to these Terms, you are agreeing to receive emails, phone calls and text messages from Toyota during the 5-day experience of Your Other You.
The online terms contained language that alerted Duick to future email messages “from Toyota,” but she would reasonably expect these to be mundane messages about a purported ‘Personality Evaluation’–i.e., the fact that she agreed to receive emails, phone calls and texts does not amount to consent for receiving “frightening or disturbing messages” from some unidentified third party. The court notes that there was probably a way for the terms to be drafted to avoid the issue, but then again that would probably defeat the contest’s purpose.
Michael Anderson’s post provides some detail about the campaign and asks some good questions (“Prank Marketing and the Toyota Matrix: How Far Is Too Far?“):
When you employ a viral mechanism to promote the game, how overtly should it indicate the game’s fictionality? How much information do you disclose about the nature of the campaign? Finally, how do you allow for players to opt-out if they no longer wish to continue the experience?
Where one person can sign another person up to participate in the game, you would be well-advised to indicate the game’s fictionality as overtly as possible. The terms provided to the so-called ‘player 2’ should be clear and accurate. Don’t count on the court to add additional terms to the terms of use based on context. Providing a robust and simple-to-use opt-out also sounds like an excellent idea, although I’m not sure it would save this type of a contest. Duick did not assert claims under the TCPA for unsolicited text messages, but she and other participants of the contest who received text messages could assert those claims.
Duick still faces the Herculean challenge of proving up her damages, but she has to feel good about avoiding arbitration.
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