Disney Claims Streaming Terms of Service Prevent Wrongful Death Suit
At a time when Disney could use a little goodwill from the public, it’s pursuing a legal argument that is sure to cost the company.
The happiest place on Earth transformed into a tragic scene in October 2023. That’s when Jeffrey Piccolo and his wife Dr. Kanokporn Tangsuan visited a restaurant at Walt Disney World in Orlando, Florida. Despite having warned their server multiple times of her severe allergies, Dr. Tangsuan suffered an allergic reaction to a dish that led to her death. Piccolo is now suing Disney, alleging wrongful death, but a motion filed by the company in May says that Piccolo agreed to a provision in the Disney+ terms of service that should allow them to have the case dismissed.
Key Details:
- Disney says its streaming user agreement includes a forced arbitration clause which should result in the case’s dismissal.
- Piccolo is seeking $50,000 in damages, as well as a jury trial.
- Roku recently updated its terms of service with a similar forced arbitration provision.
Piccolo, Tangsuan, and her mother went to the Raglan Road Irish Pub at Disney Springs on the night of Oct. 5, 2023. They chose the restaurant specifically because it promised to accommodate guests with food allergies, and the group made sure to check multiple times to ensure that the food ordered would not aggravate Tangsuan’s allergies, according to Piccolo’s suit.
Despite the care taken by the group, Tangsuan had to be rushed to the hospital a short time later. There, her family was told that she had passed away. The medical examiner found that her cause of death was “anaphylaxis due to elevated levels of dairy and nut in her system,” according to the lawsuit.
Now, Piccolo is suing for $50,000, as well as a trial by jury “on all issues so triable.” But Disney clearly doesn’t want the issue to go to trial, as it filed a motion in May asking the court to order Piccolo to seek arbitration instead. The force behind Disney’s argument is that when Piccolo signed up for a free Disney+ trial in 2019, he agreed to a clause embedded in the streamer’s terms of service which said that he — and all other subscribers — would arbitrate cases against the company instead of participating in a lawsuit.
“Any dispute between You and Us, Except for Small Claims, is subject to a class action waiver and must be resolved by individual binding arbitration,” the Disney user agreement reads.
The company also claims that Piccolo used the same account to purchase his Disney tickets, but even his first terms of service agreement is sufficient to prevent a trial by jury.
“Piccolo ignores that he previously created a Disney account and agreed to arbitrate ‘all disputes’ against ‘The Walt Disney Company or its affiliates’ arising ‘in contract, tort, warranty, statute, regulation, or other legal or equitable basis,’” the company’s motion to send the case to arbitration says.
How Common Are Arbitration Clauses in Streaming Agreements?
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Most consumers aren’t even aware that they’ve entered into arbitration agreements like the one in Disney+’s user agreement. A University of Michigan Law School survey from 2023 found that over 99% of customers don’t know they’ve signed up for such agreements until it’s too late, streamers and the makers of some physical products are increasingly enforcing such provisions, and burying the clauses deep in the terms of service knowing that the vast majority of customers skip through to the end when creating accounts without reading them fully.
In March, Roku also updated its terms of service with a provision that forced anyone with legal complaints against the company to take their issues up with Roku’s lawyers first. Like Disney, Roku’s user agreements also include an arbitration clause, and it forced customers to accept the terms of service before they were allowed to use their Roku devices again.
Clauses like this are unfortunately pretty common in the streaming world, and it’s likely that customers with multiple streaming services have agreed to them many times. Hulu and ESPN+ have the same user agreements as Disney+, so those streamers too enforce an arbitration provision. Max puts its arbitration clause front-and-center in its agreement’s second paragraph, and Amazon also makes mention of a “class-action waiver” in its terms of service for Prime Video.
Piccolo’s lawyers argue that because he is not bringing the lawsuit on his own behalf, but rather on behalf of his wife’s estate, the arbitration clause is not applicable. The case is likely to drag on in public view now, and risks painting Disney in a highly unfavorable light at a time when goodwill from the public would do it some good. Disney is battling an antitrust lawsuit from Fubo over the new streaming product Venu Sports, and has attracted negative attention from some high-profile lawmakers.
Disney+
Disney+ is a video streaming service with over 13,000 series and films from Disney, Pixar, Marvel, Star Wars, National Geographic, The Muppets, and more. It is available in 61 countries and 21 languages. It is notable for its popular original series like “The Mandalorian,” “Ms. Marvel,” “Loki,” “Obi-Wan Kenobi,” and “Andor.”