Snap’s TOS Fails (Uh Oh)–Doffing v. Facebook

This is one of the dozens of lawsuits alleging that social media services addict kids. Those cases cover the same ground as CA AB 2408, which recently died in the California legislature. The plaintiffs’ lawyers are proceeding in court anyway.

These plaintiffs sued in Oregon. Snap sought to move the case to Central District of California. (Facebook acquiesced to Snap’s motion). The court disagrees with Snap.

Personal jurisdiction. The court finds Calder v. Jones-based personal jurisdiction over Snap based on the plaintiffs’ allegations that:

Defendants acted intentionally when they entered into contracts with M.K., a minor that resided in Oregon and that used defendants’ products exclusively in Oregon….Snapchat is a highly sophisticated product that has been purposefully distributed to Oregon residents in the State of Oregon, where it is used as a means to maintain almost constant communication with Oregon residents and also collect and distribute Oregonian’s personal information.

Snap has entered into contracts with thousands of Oregon residents. Snap sent thousands of text messages and emails to M.K. in Oregon, and likely sends thousands of similar communications to its other Oregon users. Snap works with Oregon businesses to provide location-specific services targeted directly at Oregon residents. Snap tracks Oregon residents by their location and monitors how they use the product so that it can recommend new connections, products, or activities in order to increase user engagement. Snap also relies heavily on its ability to collect and disclose to its advertisers the personal data and metrics collected from Oregon residents, including M.K. Snap stores and utilizes incredible amounts of personal information from every Oregon user in a manner and to a degree that jurisdictional jurisprudence could not have imagined as little as ten years ago. To find that Snap did not purposefully avail itself of the privileges of conducting business activities within Oregon while Snap maintains near constant communication with Oregonians and continues to mine Oregonian’s data would be contrary to the notions of fair play and substantial justice and would potentially impede on the Oregon Legislature’s ability to protect Oregonians from the harms alleged in this lawsuit.

In a dubious statement, the court says it’s “limiting this opinion to Snap’s conduct towards Oregon and Oregon residents. The Court does not find that Snap has purposefully directed its conduct to every forum where Snapchat is used.” The court’s claim makes no sense because plaintiffs’ counsel will undoubtedly recycle identical allegations in other states after a global find-and-replace to change “Oregon” to “[desired venue].” The court is willful blind if it thinks that its reasoning only affects Oregon.

Venue Selection. Snap invoked the forum selection clause in its TOS. In a statement sure to spook every social media service, the court finds “the forum selection clause invalid because it is procedurally unconscionable, substantively unconscionable, and unenforceable against a minor.” A trifecta of futility that isn’t easily corrected.

Procedural unconscionability.

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.

Like Sifuentes v. Dropbox (uncited), the court seemingly obligates Snap to force all consumers to read TOSes. If this is the new legal standard, the formation process burden has gone up dramatically compared to “clickthrough” requirements of the past. As consumers, we’ll be pretty bummed if we have to read all TOSes before we’re allowed to proceed.

The court also does not cite Doe v. Roblox, which said that a TOS didn’t form with a minor because a reasonably prudent child would not have understood the formation process. This court’s discussion about the likelihood of kids reading to page 13 is on the same wavelength, but this court anchors its concern in unconscionability, not assent.

Even if the court is correct about how minors would have navigated this situation, the court doesn’t address the obvious fact that its concerns equally apply to adults. Adults don’t click on TOSes, read to page 13, or understand what they read. Yet, the court ignores the voluminous caselaw upholding TOSes in those circumstances for adults. The court could have at least addressed the caselaw or explained why kids are different.

Substantive Unconscionability. Snap’s TOS instructed teens to talk with their parents before proceeding. The victim’s parent in this case continues to insist that she has never given consent, yet Snap hasn’t terminated the victim’s account. “Therefore, it seems that Snap is asking this Court to enforce a contract that Snap itself is reluctant to enforce.” I think this is supposed to be a gotcha, but I’m too obtuse to see it.

Conclusion. The court concludes:

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.

When this issue has come up before, courts required the minors to stop using the service as part of the disaffirmance. I assume at this point that Snap, and other social media services, will treat each lawsuit as disaffirmance and close the plaintiffs’ accounts. If the victims are actually addicted, I wonder what happens then? Obviously the parents either chose not to cut off the minors or failed to do so. Is cutting off victims cold turkey, and breaking all of their social connections and deleting all of their content, actually in the minors’ best interest? This court apparently leaves the services no choice.

Though it doesn’t make a difference to this venue ruling, it does matter whether the court is saying that the minor disaffirmed or that the contract was always unconscionable. If it’s a disaffirmance, I believe the contract provisions govern the time prior to the disaffirmance. If the contract was unconscionable, then the entire contract failed from inception and any contract provisions that Snap hoped to invoke got irretrievably eliminated. That would leave Snap without its risk limitation provisions and likely without any of its warnings or disclaimers. That’s a very, very dangerous outcome for Snap.

Though this opinion didn’t reach the merits of the lawsuit, if I were Snap or Facebook, I would be extremely nervous about the tenor of this opinion. However, their relationship with this judge is likely to be mooted if this case is swept into an MDL.

Case Citation: Doffing v. Meta Platforms, Inc. 2022 WL 3357698 (D. Ore. July 20, 2022). The Social Media Victims Law Center’s announcement of this case.