Social Media Giants vs Children – the truth behind social media contracts

11 January 2018

Increasingly, facts and figures about the negative effects of social media are being reported in the press. Recent statistics have shown that three-quarters of children aged 10-12 already have social media accounts, and that the amount of time children aged 12-15 spend online has more than doubled in a decade. Just last week, the Children’s Commissioner announced that schools should be playing a bigger role in preparing children for social media’s “emotional demands”. Such reports are understandably very concerning, and raise questions about the morality of social media giants benefiting at the expense of the emotional wellbeing of children. However, thought should also be given to the legal aspect of these relationships, and in particular, the terms and conditions that children are signing up to when creating social media accounts.

Can social media companies legally contract with children?

Under English law, a child (a ‘minor’) is anyone under the age of 18. The law creates a presumption that children under the age of 7 do not have capacity to enter into a contract. Between the ages of 7-18, a minor can enter into a contract, but the law will presume that the minor cannot understand it. For this reason, contracts with minors are generally voidable (non-binding) at the minor’s option, unless an exception applies (such as an apprenticeship contract, a contract for the ‘necessaries of life’ such as food, clothing, medicine and accommodation, and other service contracts that are to the child’s benefit, such as education). None of those exceptions could be said to apply to social media contracts, meaning that if you’re under the age of 18 and creating a social media account, you are not legally bound by the terms and conditions attached to it, if they are governed by English law.

When creating a new account with Snapchat (which, at the time of writing, has terms and conditions governed under English law for users based outside the USA), users are asked to verify that they are aged 13 or over. Given that contracts entered into by minors between the ages of 7-18 are voidable, the stipulated minimum age of 13 is in fact irrelevant in terms of Snapchat’s right to enforce the terms governing any such account.

Unfortunately, the situation is less clear cut when the terms and conditions of the social media platform are governed under the laws of jurisdictions other than England. At the time of writing, Facebook and WhatsApp’s terms incorporate a minimum age requirement for users of 13, but are governed under the laws of California, where the laws may differ from those of England as to whether contracts with minors can be enforced.

Unsurprisingly, increasing the numbers of their teenage users appears more important to social network companies than the ability to enforce their terms against those users. However, irrespective of enforceability, terms and conditions contain important practical information setting out the ways in which social media platforms are making use of users’ data on a daily basis. But if a minor (or an adult) ever read those terms, would they understand them?                                                                                                            

Simplified terms and conditions

As we all know, terms and conditions are often very lengthy and complex. For example, BBC News recently noted that Instagram’s current terms and conditions are made up of approximately 5,000 words, and include references to terms such as “fiduciary”, “indemnification”, “strict liability” and “consequential damages”. But how many minors (or adults) actually know what these words mean? And how likely is it that a minor (or adult) would have any inclination to read a 5,000-word document filled with legal jargon? Unsurprisingly, the vast majority of minors have no interest in reading these terms and conditions before signing on the (online) dotted line. Certain social media platforms may also struggle to enforce such terms against their adult users, given that, under English law, provisions which are not expressed in 'plain English’ are likely to be considered unfair and unenforceable against consumers.

For minors (and adults) wanting to hook into the social media frenzy, the Children’s Commissioner recently published a set of ‘simplified’ terms and conditions in relation to several major social media platforms. Unfortunately, these are only guidelines for the moment, and there are currently no plans for social media companies to adopt similar terms.

However, the simplified terms reveal a number of particularly eye-opening details about the ways in which minors’ data is used by social media platforms, including:

  • Snapchat can send information about you to other people in your phonebook.
  • Instagram can keep information it has gathered about you, even once you’ve deleted your account, for “as long as is reasonable”.
  • Facebook can use your name, profile pictures, information about what you ‘like’ and anything you post to make money. Facebook does not have to pay you for using this information.
  • Facebook can store and keep your photos or videos, even once you have deleted them.

Simplified and more transparent terms and conditions would, at the very least, give users an opportunity to fully understand how their data is being used by social media platforms. Let’s hope these social media platforms (and their lawyers) take note.

If you need help drafting, reviewing or understanding the implications of any commercial contractual documents, please contact a member of Kingsley Napley’s Corporate & Commercial team, details of whom can be found here. Kingsley Napley also has a specialist data protection team, who can assist with any data protection related queries you might have. Details of the data protection team can be found here.

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