Does agreeing to the terms of service when signing up for Disney’s video-on-demand service mean you’ve agreed to never sue the entertainment giant for anything again?
At least that’s what Disney is arguing in its defense in a lawsuit filed by the family of a 42-year-old New York doctor who allegedly died of an allergic reaction after eating at a Florida restaurant owned by the company.
Disney argues that the deceased’s husband cannot sue the entertainment giant because he agreed to terms of service for the Disney+ platform several years ago, which would shield the company from prosecution.
But while the argument may be valid in the United States, legal experts believe that in Quebec, Disney would not even try to invoke it.
A fatal allergy attack
Disney is asking a Florida court to dismiss a lawsuit filed by Jeffrey Piccolo, the widower of Kanokporn Tangsuan, who practiced family medicine at NYU Langone’s Carle Place office on Long Island.
Mr. Piccolo’s complaint, filed last February, claims that he, his wife and his mother ate at the Raglan Road Irish Pub at Disney Springs, an outdoor dining and entertainment complex at Disney World, on Oct. 5, 2023.
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Jeffrey Piccolo (left) is suing Disney over the death of his wife, Kanokporn Tangsuan (right).
Photo : Facebook/Jeffrey Piccolo
According to the lawsuit, Tangsuan repeatedly informed the server that she had a severe nut and dairy allergy and needed allergen-free food. The server then allegedly assured the table that the dishes he brought were allergen-free, even though some did not have the distinctive flags.
About 45 minutes after the family finished dinner, Tangsuan reportedly experienced difficulty breathing while shopping and collapsed. She eventually died at the hospital, despite self-administering an EpiPen during the allergic reaction, according to the lawsuit.
A medical examiner’s investigation later determined she died of anaphylaxis due to high levels of dairy and nuts in her system, the lawsuit said.
Mr. Piccolo is seeking more than US$50,000 (over CA$68,000) in damages in the lawsuit.
Binding arbitration clause, according to Disney
The company argues that by agreeing to the terms of service when he signed up for a one-month trial of Disney+ in 2019, Mr. Piccolo also agreed to settle any legal claims against Disney out of court through arbitration.
He also allegedly agreed to similar terms when purchasing an online ticket to the Epcot theme park.
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Disney also claims it is immune from prosecution by Jeffrey Piccolo because he purchased Epcot Center tickets online.
Photo : Associated Press / Joe Burbank
Arbitration allows people to settle their disputes without going to court. A neutral arbitrator reviews the arguments and evidence before making a binding decision or award.
The terms of service, which come with the subscription agreement, include a binding arbitration clause, Disney wrote in its response to the lawsuit.
The first page of the subscription agreement states, in all capital letters, that “any dispute between you and us, except for small claims, is subject to a class action waiver and must be resolved by binding individual arbitration.”
Similar conditions of use in Canada
Disney+’s terms of service in Canada contain language similar to that seen in the United States.
If you or Disney Interactive do not resolve a dispute through informal negotiations or in a court of competent jurisdiction, any efforts to resolve the dispute will be conducted exclusively through binding arbitration, it reads.
YOU WAIVE THE RIGHT TO RESOLVE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.
These Terms of Use also stipulate that no class action may be brought against Disney+.
In a reply filed earlier this month, Mr. Piccolo’s lawyer argued that it was absurd to believe that Disney+’s more than 150 million subscribers had waived any right to sue the company and its subsidiaries in perpetuity — even though their case has nothing to do with the streaming service.
The idea that the terms a consumer agreed to when creating a Disney+ free trial account would forever deny that consumer the right to a jury trial in any dispute with any Disney affiliate or subsidiary is so outrageously unreasonable and unfair that it shocks the judicial conscience, and this court should not enforce such an agreement, Brian Denney, Mr. Piccolo’s attorney, argued in a filing dated Aug. 2.
But Disney, in its May 31 affidavit, argued that whether Mr. Piccolo actually reviewed the terms of service was immaterial. The company also noted that the arbitration clause covers all disputes, including those involving The Walt Disney Company or its affiliates.
What does Disney own?
The implications of Disney’s argument are great, since the company has many subsidiaries.
The Walt Disney Company (or more commonly Disney) is one of the largest companies in the world, being ranked as the 47th largest American corporation (based on revenue) by the magazine Forbes.
An entertainment superpower, the company owns, among other things:
– des studios de production (dont Walt Disney Pictures, Pixar, Marvel, Lucasfilm, 20th Century Studios et Searchlight Pictures);
– amusement parks (in Florida, California, Paris, etc.);
– television channels (including ABC, FX, National Geographic and Disney Channel);
– online video streaming services (including Disney+ and Hulu).
Disney also owns 80% of the sports media company ESPN. As a result, it owns 20% of the Quebec channels RDS, RDS2 and RDS Info.
A hearing on Disney’s motion is scheduled for October 2 in Orlando County Court.
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Located in Orlando, Florida, Walt Disney World has been the world’s most visited vacation resort for many years.
Photo : Reuters / Octavio Jones
An impossible situation in Quebec
Two lawyers interviewed by Radio-Canada are categorical: it is highly unlikely that arguments like those used in the United States could be seriously invoked in Quebec.
It is forbidden here to exclude or limit liability for bodily injury, emphasizes firstly Vincent de l’Étoile, lawyer specializing in civil and commercial litigation for Langlois.
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Vincent de l’Étoile specializes in the entertainment and technology sectors.
Photo: Langlois Lawyers
In Quebec, in a contract or by warnings, by any mechanism, someone cannot exclude or limit their liability for anything that affects physical integrity. We could not invoke the clause of a contract to say that we cannot be sued in relation to bodily injury or death.
Liability limits are legal. That said, you can’t do it to avoid liability for moral or physical harm caused to someone, says Jocelyn Auger, a lawyer specializing in information technology for Fasken.
In addition, in Quebec, consumers are protected from clauses requiring recourse to arbitration in contracts.
A company like Disney can’t force arbitration [aux consommateurs]explains Me de l’Étoile.
You cannot include an arbitration clause in a contract, and if someone were to include it, that clause would be deemed invalid and unenforceable, that is, it would have no effect.
A quote from Vincent de l’Étoile, lawyer specializing in civil and commercial litigation for Langlois
Mr Auger considers that such a clause in an adhesion contract is clearly disadvantageous for the consumer, in particular because arbitration costs more.
The latter is recommended by companies because it remains confidential and such a remedy avoids going before a jury, which would reduce the risk for the company being sued of paying a large sum.
The only possible recourse to arbitration is if the consumer consents after the problem has arisen.
A quote from Vincent de l’Étoile, lawyer specializing in civil and commercial litigation for Langlois
For Me de l’Étoile, it is clear that, in this context, establishing a link between the two silos constituted by, on the one hand, the Disney+ service, and, on the other hand, the Disney theme parks, is exaggerated and could clearly attract comments.
Furthermore, Mr Auger points out that it was not the victim who signed the famous adhesion contract and that she is therefore not bound by this contract.
The scope of adhesion contracts
Extremely common practices of websites, membership contracts (also called Terms and Conditions) are increasingly making their way into law.
But their scope remains unclear.
A contract doesn’t need to be formal, but there must be an exchange of consent. Both parties must agree to sign a contract together. That’s often where, with the terms and conditions, it’s not obvious, explains Jocelyn Auger.
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Lawyer Jocelyn Auger is a partner in the business law group at Fasken in Montreal.
Photo: Fasken/Olivier Samson Arcand
The lawyer explains that an online subscription with a checkbox at the end of the form confirming the user’s consent is, generally speaking, valid.
Case law has come to recognize that this, yes, can form a contract – subject to certain exceptions.
The expectation of the law is that the clauses must be read, and someone who signs and declares to have read them will be presumed to have read them and to have understood them.
A quote from Vincent de l’Étoile, lawyer specializing in civil and commercial litigation for Langlois
The terms of use that consumers accept online are legally binding, as long as our consent is free and informed. They then apply to us and can have important consequences in our lives, says Clément Camion, lawyer and co-founder of the legal design agency En Clair, a company that aims to simplify documents, such as online consumer contracts.
However, membership contracts have limits.
Even if the contract is validly formed, certain so-called “abusive” clauses are prohibited in consumer contracts.
A quote from Clément Camion, lawyer and co-founder of the legal design agency En Clair
[Des clauses comme celles mises en avant par Disney] may appear in the conditions that one accepts online in Quebec, if the contract is the same for all customers in North America, for example. In principle, the organization should specify in its contract that this clause does not apply in Quebec, but this is rarely the case in practice. Consumers may therefore wrongly believe that this clause applies to them.
There may be clauses that make absolutely no sense, in which case we will have to interpret what that means, specifies Vincent de l’Étoile.
With information from the Associated Press