How Disney attempted to prevent a lawsuit by relying on their T&Cs

Alena Makarevich, Commercial Associate, explains how Disney attempted to prevent a grieving husband from suing them following the death of his wife in 2023 from a severe allergic reaction after eating at the theme park in Florida.

While the entertainment giant has since backtracked on its position, there’s still a lot to be learnt from this case; for businesses and consumers alike.

Along with shedding light on the T&Cs hidden in Disney’s streaming service Disney+’s licence agreement, Alena also explains the importance of transparency and fairness in UK law which is a cornerstone of consumer protections on this side of the pond.

Alena explains:

“Disney sought to rely on its terms and conditions to prevent a man from taking the conglomerate to court over the sad death of his wife. Disney claimed that because Mr Piccollo signed up the terms and conditions of its streaming service, Disney+ in 2019, the case had to be decided by arbitration rather than in front of a jury.

“Arbitration is an alternative to court litigation for resolving disputes, with arbitration proceedings typically remaining confidential. All parties must agree to submit the dispute in question to arbitration, so the contract or terms and conditions will have a clause that says that parties agree to arbitration and on what terms – seemingly, Mr Piccollo has innocently agreed to these T&Cs without knowing the future impact it may have.

“Disney has since backtracked on their position, saying that they have waived their right to arbitration, meaning that the matter will now proceed in court. However, Disney’s original position, if it succeeded, could have wider implications for consumers based in the US. Disney’s argument was that by signing up to one of Disney’s services (here, a Disney + account), the customer accepts Disney’s terms and conditions in respect of other products and services, such as tickets for a theme park, although  Mr Piccollo’s lawyers called it a “weak argument”.

“Since Disney is no longer pursuing this line of argument, it remains to be seen whether or not it would succeed in the US, but it serves as an important reminder of the significance of the terms and conditions you sign up to, even for something as seemingly inconsequential as a streaming service.

“In the UK, consumer protection from unfair terms is underpinned by several key principles. This includes transparency and fairness.

“As such, English courts will consider whether the term is fair and whether the consumer was given a genuine opportunity to understand and consider that term. Any particularly onerous terms need to be prominent and not hidden in small print. Companies relying on their terms and conditions need to be aware of the ‘grey list’ of terms under consumer law, which is a non-exhaustive list of terms that may be regarded as unfair.

“Under English law, certain terms are wholly ineffective, such as that liability for death or personal injury arising from negligence cannot be excluded or limited. That means that a party to a contract cannot rely on any provision attempting to disclaim its liability where their negligence has caused someone’s death or personal injury.

“Any such provision would be automatically unenforceable. This rule applies to both business-to-business contracts and consumer contracts.”

For more information on navigating commercial contracts and ensuring your business remains protected and compliant, you can get in touch with Alena via alena.makarevich@primaslaw.co.uk.