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What can the Big Screen teach us about unfair terms and conditions?

6th September 2018

What can the Big Screen teach us about unfair terms and conditions?

6th September 2018

In a room of 100 business owners, up to 88 will be trading under non-compliant consumer contracts. 

What does that mean?

Well, in short your business is left in an enforceability limbo.  The business could lose money owed to it, or even worse, find itself with hefty liabilities. To make things worse, these business owners will only check for discrepancies once every 4.5 years on average.

Little did we know, the Big Screen could actually teach businesses a thing or two. After reading a rather inspired legal critique of Charlie and the Chocolate Factory, it got me thinking about some well-loved family films and how they highlight valuable ‘consumer-dealing’ lessons for businesses.

The Little Mermaid and the Unfair Penalty

We all remember Ariel’s agreement with Ursula to give up her voice in return for becoming human. The contract placed an obligation on Ariel to make the prince fall in love with her within three days. If she met this obligation, she would keep the legs and live happily ever after with her prince. If not, she had to pay a further penalty – her soul.

Any term requiring the consumer (who has failed to fulfil an obligation) to pay a disproportionately high sum in compensation is potentially unfair. Not only could this clause fail, but where a severance clause is not used, the entire contract could also fail.

Harry Potter and the Right to Cancel

The story reads “Once a champion has been selected by the Goblet of Fire, he or she is obliged to see the (triwizard) tournament through to the end. The placing of your name in the goblet constitutes a binding, magical contract. There can be no change of heart once you have become a champion.”

This may be true for a consumer entering an on-premises contract i.e on the trader’s premise or some doorstep agreements. But, if a champion’s name was provided online, through social media or on the telephone, they would likely have the right to change their mind within 14 days under the Consumer Contract Regulations (unless this right is waived in writing by the champion or it is subject to one of the limited exceptions of the Regulation!)

Shrek and the Missold Service

After an evening of drinks, Shrek reminisces about life before becoming a domesticated husband and father. He begins to pine for the simpler days when he was a “real ogre”.

Rumpelstiltskin sees this vulnerability and dupes Shrek into signing an agreement that places him in an alternate Far Far Away. This unknowingly places him in great danger as Rumpelstiltskin is in control and Princess Fiona has no memory of him. Shrek was mis-sold and as a result suffered a series of detriments.

If a consumer purchases a product or service that is misdescribed, they may have a legal right to end the contract (or to get the product repaired or replaced or a service re-performed or to get some or all of their money back).

Truman and the Data Protection Act

In The Truman Show we see Truman living his life unknowingly on a TV set. He is blissfully unaware that the world knows every detail about him.  We are given little detail as to the legal nature of his recruitment, we only know he has been on TV since “day one”. Let’s imagine Truman was within the jurisdiction of English Law. While a legal guardian may have given consent to his participation on his behalf prior to his 18th birthday, under the Data Protection Regime, he would have attained the right to know what is happening to his personal data “once competent”. This could be as young as 13.

As Truman was a Data Subject, Christof and the TV network would have needed to follow the various GDPR principles including lawfulness, fairness and transparency. They would also have owed him a duty to be informed.

Somehow, I think legitimate interests may not have cut the mustard in this circumstance.

So what did we learn?

Your terms of business are valuable and must be updated regularly. The law changes and so will your terms. With our annual review service, you can make sure that your terms of business are always up to date. Contact us to find out more.

Leanne Yendell is a Trainee Solicitor and regular contributor to the Cartridges Law blog as well as Law Society publications. Find Leanne on LinkedIn.