Double Dutch: Disney claims man can’t sue for wife’s death at Disney resort because of Disney+ T&Cs
A USA doctor died from an allergic reaction after eating at an Irish pub in Disney Springs. Her husband is suing the pub and Disney.
Stunningly, Disney lawyers have decided to play two cards to get out of being sued. They’re saying
1. that Disney doesn’t have anything to do with the pub (could be reasonable)
2. that the husband subscribed to Disney+ for a month years ago. He agreed to settle any disputes with Disney out of court because he ticked the Terms and Conditions box. (What the actual f**k?!)
Dr. Kanokporn Tangsuan, who passed away from an allergic reaction after eating in Disney Springs (Source: Facebook)
Consumer negligence? Really?
The articles online all say ‘consumers must read the fine print’, and ‘only sign up after you completely understand’.
Victim-blaming, anyone?
The problem isn’t consumer negligence, it’s dodgy Terms and Conditions!
And how can a legal team be so blind to the effect of this defence on consumers’ respect for Disney?
To me as a New Zealander, knowing little about the USA system of suing, this seems like a TERRIBLE way for Disney to present itself to the world.
Why?
Disney is massive
It’s a gargantuan organisation. When giant organisations turn themselves into Goliath by making an enemy of a David, it’s a public-relations disaster. They seem miserly, inhumane, uncaring. Disney will have to spend massive amounts of PR dollars to get back into our good books. (Couldn’t that money have gone to the grieving husband?)
The effort (and money!) they’ll spend defending their legal position makes them seem like they have to win at all costs – the ‘happiest place on earth’ is a veneer we’ve just scraped away to find rot underneath.
Disney appears like just another corporate monster steamrolling over individuals.
The happiest place on earth?
No one likes the ‘get out of jail free’ approach
This approach smacks of trickery. Picking away at loopholes. Underhandedness.
Where’s taking responsibility? Where’s being a grown-up? Where’s realising harm has been caused and you might need to go through a process to find out if courts consider you responsible?
A streaming service isn’t a resort
When I click on the T&Cs button, I assume I’m accepting terms that relate to the service I’m using, not to any service ever in a giant empire of potential services, and for all time.
To quote a 1News article, ‘Piccolo’s lawyer, in a response filed this month, argued that it was "absurd" to believe that the more than 150 million subscribers to Disney+ have waived all rights to sue the company and its affiliates in perpetuity — especially when their case has nothing to do with the popular streaming service.’ Full 1News article
To extrapolate from a streaming service to a resort service is not fair. It’s patently unfair – to everyone except Disney’s legal team!
No one reads T&Cs
The odd brave soul might, but we’re so used to T&Cs being dense and incomprehensible that we don’t read them.
Also, what would we do if we disagreed with a particular term? Who would we contact to negotiate that term? There is no contact person. There is no way to negotiate. You accept the terms or you piss off.
This gives the company all the power and the consumer none. Hello again, corporate monster steamrolling over individuals.
Legal teams need to think beyond risk protection
A good legal team will protect a business from risk. But when that’s their only goal, we end up with contracts that:
cover every possible situation ever – read LOOOOONG
use clauses that ‘have worked before’ because they feel safer – read convoluted legalese
are entirely stacked in the company’s favour – read rigid and potentially unethical
Contracts that scalp one party and benefit the other tend to cause problems. People feel hard done by. They’re less likely to comply. They’re more likely to dispute things.
What if we were to reimagine terms and conditions?
What if the legal team involved the PR and finance teams?
What if they did a bit of maths and worked out that appearing trustworthy and honest to customers is more valuable than preventing the odd customer from taking advantage?
The length issue
What if companies who valued their reputation came up with a few core must-have T&Cs and deleted everything else?
What if they took a ‘wait and see’ approach? What if they only added to the T&Cs if the company was having a serious problem that could be fixed by adding to the T&Cs?
The language issue
What if lawyers used plain language? What if they wrote the meaning of those convoluted clauses using other words?
Of course, some specialist terms would need to be in there. But there wouldn’t need to be a lot of them. And each one could be explained in everyday language.
The favouritism issue
A move in the legal community these days is to create contracts that benefit both parties. Deliberately, actively. They say it means fewer disputes come up. People tend to have better relationships with the other party. Compliance is way less of a problem.
I remember proofreading a NZ bank’s credit card agreement after a colleague had rewritten in plain language. I was stunned: ‘Is that what it ACTUALLY says?’
Reading it in plain language, it was so clear that the bank had all the power and the customer none whatsoever. I asked ‘Are all banks like this?’
My workmate said ‘Yes. This is a standard kind of agreement – nothing surprising in here.’
Corporate marketing says ‘We care about our customers’ but corporate contracts say the opposite. What if companies cared enough about their customers to offer fairer terms?
What if there was a way for customers to give feedback on T&Cs? What if there was a way for them to say the bits they thought were unreasonable? Negotiate them a bit?
Or what if companies tested their draft plain-language T&Cs with customers to see if any aspects seemed patently unfair?
Plain-language contracts are more common than you think
Terms and conditions can go through the plain-language facelift we’ve seen happen in New Zealand with
employment agreements
insurance policies
home loans
credit card agreements.
If all those other types of contracts can be made plain, there’s no reason for T&Cs to be the odd ones out.
Think of the market differentiation!
Imagine being able to market yourself as a company that’s so honest customers will understand every word of your succinct, reasonable, fair T&Cs? It would be revolutionary.
No one does that. But it’s possible. And you could lead the revolution…
Want to learn more about plain language’s business advantages? Join the School of unProfessional Writing
