KEY POINTS:
- Lawyers on television don’t always reflect lawyers in real-life.
- While an answer like “it depends” doesn’t make for exciting TV, it often is the only correct way to respond when asked about a party’s rights under the contract.
- A real-life contracts lawyer would approach a contractual dispute cautiously and attempt to understand the context before offering an opinion.
Like so many, I was mesmerized watching Joan is Awful, the first episode in Black Mirror’s latest season on Netflix. (Before you go on, you should know that this article contains spoilers.)
While I loved the show and the twist at the end, I was particularly fascinated by the lawyer advising Joan on her contractual rights. Because I’m not someone who plays a contracts lawyer on TV. I’m one in real life. And I can tell you that the scene and the advice was as much fantasy as the rest of the show.
The only thing real about that scene discussing the contract was Salma Hayek still being gorgeous despite two blond streaks of hair framing her face while doing unacceptable things in a church.
While there were many things wrong with the advice from Joan’s lawyer, I’ll focus this article on the contractual issues that I spotted.
What Joan’s Awful Lawyer Said
In this episode, Joan discovers her ordinary life is portrayed in a new streaming series starring Salma Hayek with Joan’s bad behaviors on display. The show’s episodes capture all the minute details of her life from her indifference about firing an employee to kissing her ex after complaining to him about her fiancé.
Joan was incensed after the show streamed her likeness and personal behavior on “Streamberry’s” video platform. And rightfully so! She felt wronged. And like so many of us, she took that frustration to a lawyer and asked for her options.
Here’s what Joan’s lawyer said:
Well, I’ve checked it over, and I have to say that actually, legally, the Streamberry Corporation can do this . . . And you assigned them the right to exploit all of that . . . All of that would have popped up on your phone or whatever when you first signed up to Streamberry. And you clicked “accept.” . . . [Y]ou did accept it, and so they’re in the clear.
How a Real-Life Contracts Lawyer Would Approach This Matter
Uh, no. Here’s what I would have done if Joan had come to me for legal advice about a counterparty’s performance under a contract.
1. Understand the Context.
The contract language is important but only one part of determining the nature of the parties’ obligations. The first thing that almost all contract lawyers would do is ask about the context. We’d ask questions to understand all aspects of the situation – the activity in question, the nature of the relationship, the context of the acceptance, and the activity of concern.
2. Don’t Jump to Conclusions.
Good lawyers would never say “They’re in the clear.” Because reviewing a contract does not give us enough information to determine if that’s true. We need more than the language to understand the parties’ rights. Whether or not a contract is binding depends on the facts. Whether a company’s contractual rights are enforceable depends on the facts. Whether a counterparty can give the type of permission that Joan gave again depends on the facts.
3. Consider Both Sides.
There are two sides to every story, as there usually are with contracts. The clearer the contract, the clearer the story. But even the clearest of contracts have disputable aspects to them because, at the end of the day, we are all human.
Joan’s lawyer should be looking for ways to help Joan with her problem. She should issue-spot the strengths and weakness of each party to gauge what some potential options or limitations might be. How
How I Would Have Responded as Joan’s Aw-esome Lawyer
If I had been cast in the lawyer’s role and allowed to use a real-world response, here’s what I would have said.
Well, I’ve checked it over and I have to say that I don’t know yet. We have to do a thorough review of the contract first. Then I want to understand more about the nature of your acceptance. I’ll look at the way the “I accept” button was presented and any disclaimer language. We’ll review when the disclaimer appears in relation to your engagement. We’ll also look at other documents and statements by Streamberry, including their privacy policy, public statements about what they do with data, and any other statements or actions by representatives of the company about the data.
As soon as you leave here, I want you to call this litigator to discuss other grounds for challenging Streamberry’s actions. There are public policy arguments we can make despite what the contract says. You may also pursue a restraining order against Streamberry Corporation and require that they cease broadcasting it.
While I am sure that I’d do a better job counseling Joan on her predicament, I am also sure that no one will ever ask me or any other real-life contract lawyer to do so in a television series.
Because in the real world of contract lawyers, there are too many “it depends” to make good TV.
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4 Responses
Good conclusions are derived from the series for real life. It is important to consider both sides & to understand the context.
I think I’m more interested in the mocking. I paused the episode to reflect on the T&C “joke”. The more I thought about it, the more I saw this as a middle finger to Netflix customers. First they told us if we don’t like the T&C, then cancel. People stuck around. Then there was the whole sharing accts thing, and people stuck around. People are canceling Drew Barrymore for crossing a picket line that has zero to do with most US citizen’s lives, but no one will cancel Netflix for mocking customers, GOP for failing the constitution, SCOTUS for robbing women of bodily autonomy, Police for abuse of power, etc. Those things we’ll live with because we think our voices are singularly unimportant. But, by all means, let’s go after Drew Barrymore for wanting to work.
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In Germany this thing would most definitely be void and this illegal. But one could say that the producers know this and that it’s a critique: Companies and consumers are so content driven, that this will be (made) legal.