Challenges in Enforcing TOS for Former Subscribers Without Consent

Two recent legal cases highlight the importance of obtaining clear consent from users when making changes to terms of service for streaming services.

In the first case, Brooks v. WarnerMedia, a group of former subscribers to HBO Max filed a lawsuit against WarnerMedia for violating the Video Privacy Protection Act. WarnerMedia had notified all former subscribers of an update to their terms of service, including changes to the arbitration provision. Despite sending out emails with the updated terms and requiring subscribers to review them, the court ruled that WarnerMedia did not have enough evidence to prove that subscribers had unambiguously agreed to the changes.

Specifically, the court dismissed WarnerMedia’s argument that simply accessing the updated terms on the website or maintaining an active account without logging in constituted consent. The court emphasized the importance of subscribers taking an active step to show their agreement, such as clicking a button or checking a box.

In the second case, Marshall v. Georgetown Memorial Hospital, a similar issue arose when a job applicant was asked to agree to an arbitration provision as part of the application process. Despite having previously agreed to arbitration in 2016, the court ruled that the applicant’s consent did not extend to a subsequent application in 2020. The court noted that the applicant was not required to scroll through the arbitration agreement before submitting the new application, highlighting the need for clear and specific consent in each instance.

These cases serve as a reminder to streaming companies and other online platforms to ensure that users provide explicit and unambiguous consent when making changes to terms of service. By including clear instructions for users to confirm their agreement, companies can avoid legal challenges and ensure that users are fully aware of any updates to their terms of service.