Could “Joan Is Awful” Happen To Me? An Australian Legal Perspective On The Dangers of Not Reading The Terms and Conditions

(SPOILER WARNING)

The Black Mirror episode “Joan Is Awful”, written in the explosive dystopian style typical of the series, drives home an important message to its viewers: read the terms and conditions of any contracts you sign. In this episode, Joan Tait, a tech executive, comes face-to-face with the consequences of overlooking the fine print when she discovers that her life is being turned into a near-exact retelling, albeit AI-generated and dramatised, on a streaming app called Streamberry. Apparently, this warning has already been heard by many, with media reporting that many Netflix users (Streamberry appears to be a satirical depiction of Netflix) are already rushing to read their Netflix user terms and conditions.

Indeed, recent analysis of user interaction by Lawpath has found that, of those asked to sign an agreement (that they haven’t drafted), the average time spent reading the agreement before signing is two and a half minutes, which our lawyers can confirm is nowhere near enough to understand the obligations placed upon you by an agreement and the rights that it gives the other party over you. In this way, the message that many viewers have taken from “Joan Is Awful” is a useful one.

However, we like to stress that individuals should not feel they are passive recipients of legal information, but rather that they are empowered to act upon that information. In this article, we look at what “Joan is Awful” gets right and what it gets wrong, so that viewers of this episode may be motivated to learn more about legal terms and conditions not out of fear, but out of wanting to further their own interests. We focus on how the legal claims of the episode sit with Australian law, as it differs from the American legal principles portrayed in the episode.

Read along. 

Table of Contents

The Importance of Reading Terms and Conditions

The Fine Print

Legal language in agreements can be long and complicated for the average person, and that’s without mentioning the subtle ways companies seem to discourage users from actually accessing and reading the fine print.

Companies are required by law to ask users if they agree to certain terms and conditions, or to mention that, by making an agreement, they also agree to those terms and conditions. Be on the lookout for any links to terms and conditions, or boxes you have to tick, before making any agreements or online purchases, registrations or subscriptions.

Proactively understanding the terms of an agreement can help prevent undesirable consequences. This can be done by consulting with a legal professional, or by using tools such as Lawpath AI, which includes a Simplify function that simplifies, summarises and explains legalese.

Protection Against Privacy Violations

As portrayed in the episode, overlooking the terms and conditions can lead to a violation of personal and professional life. Joan’s agreement in using Streamberry gave the company access to her life, ultimately costing her job at the company and the relationship with her fiancé Krish. The most accurate way the show depicts this is in showing how Streamberry’s AI is able to piece together a relatively accurate picture of Joan’s life from the information it picks up through her phone and its microphone.

Companies operating in Australia that collect personal information from customers are required to have a Privacy Policy which is clearly displayed to its customers. However, the legislation has not caught up to the fact that broad language in such clauses may cover quite covert forms of information collection, such as monitoring of how users navigate websites, gathering metadata on how users interact with devices, and even use of microphones. Users may not be aware that their devices allow for these methods of collecting information, or that they are legal.

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How “Joan Is Awful” Overreaches In Its Depictions of What Is Legally Permissible

The episode tends to sensationalise the scope given by contract law to Streamberry, and makes the protagonist appear almost completely powerless once they have unwittingly signed away their rights. Though clearly satirical, the inclusion of not one but two lawyer consultations in the episodes might have added fuel to the anxieties viewers had upon watching the episode. We break down how the law as depicted in the show doesn’t correspond with Australian law (we think it also doesn’t correspond to American law, but that’s a different matter).

Unfair Terms and Adhesion Contracts

Streamberry’s terms and conditions would be considered standard contracts, or under the more specific concept of contracts of adhesion, which is a contract that is made binding by being attached to the main agreement on a “take it or leave it” basis. In Australia, courts have been careful in enforcing such contracts, since the power imbalance in their making may allow for the inclusion of terms that the weaker party might not have reasonably contemplated. In the episode, Joan’s lawyer tells her that every aspect of her exploitation by Streamberry is allowed under the terms and conditions.

Although Australian courts have not clearly decided that contracts of adhesion would be unenforceable, the Australian Consumer Law provides for unfair terms in a contract to be set aside, and prohibits companies from engaging in unconscionable conduct. Streamberry’s actions would probably fail on both counts, and Joan may be able to get an injunction against the streaming provider in an Australian court.

Public Policy

Streamberry’s practices may also violate public policy, as pervasive surveillance technology and tracking users’ lives without fair consent can be against the broader interests of society. This is highlighted in the episode, as the “Joan Is Awful” series is revealed to be a test case, the precursor to such series being made about every one of Streamberry’s customers. Australian courts have set aside contract terms in various cases for their violation of public policy, and this has included contracts that enabled corruption in public life or sexual immorality, prevented the administration of justice, or restrained trade. It is likely that the terms of Streamberry’s terms and conditions allowing them to monitor Joan and create the show about her would be considered by an Australian court to be against public policy.

Defamation

The impact on Joan’s personal and professional reputation through the “Joan Is Awful” series allows potential recourse through a common law defamation claim. It is clear throughout the episode that the ordeal ruins her life, and she even suggests to her lawyer suing Streamberry for defamation. Although her lawyer tells her that the terms and conditions contain a clause, presumably an indemnity, protecting Streamberry against such a suite, such a provision would be held to be unfair and set aside by a court.

To make such a case, she would have to prove that Streamberry made what amounted to false claims in broadcasting a show about her life.

Impersonation

Although impersonation is a crime under various state legislation, this would actually require Streamberry to advertise “Joan is Awful” as a direct representation of Joan’s life- a documentary- rather than a fictionalised version of it. To remove any doubt, a viewer disclaimer might suffice. This would not be a strong claim for Joan.

Privacy

Although Australia has relatively few privacy protections compared to other jurisdictions, it is illegal under various state laws to record someone, whether through video or a microphone, on private property without their consent. The terms and conditions of a range of apps, as well as operating systems, provide some scope for recording, so that by signing those terms and conditions, users would be providing their consent. The conversation between Joan and her lawyer in the episode about her private conversations being used for targeted advertising may strike a chord with some viewers. This is an area where legislation is still catching up to the practices of technology companies.

Confidentiality

There is a small plot point in the episode where Joan is taken by her employer to have broken her non-disclosure agreement by allowing a conversation regarding the company’s commercial information to be broadcast on Streamberry. This is based on the premise that Joan actually disclosed the information to Streamberry. Non-disclosure agreements, also known as confidentiality agreements, are often drafted with quite broad restrictions, so that an intention to disclose may not have be necessary; rather the agreement may be breached by accidental or careless disclosure. This would depend on a close analysis of the facts and on how the courts will evaluate the causal link between Joan having that conversation within listening distance of her phone, and that information arriving in the hands of Streamberry.

What Could I Do If A Streaming Giant Aired My Dirty Laundry?

Generally speaking, a Cease and Desist Letter would be your first recourse to stop a party from conducting activity that constitutes a civil wrong against you, such as those listed above. Such a letter would be effective as a precursor to legal action, or even merely as a threat of legal action. Lawpath provides a range of Cease and Desist Letter templates, such as a standard letter and a letter alleging defamation.

The unfortunate matter is that, if a large corporation like today’s streaming giants would have decided to do something as brazen as Streamberry’s actions, they would probably be prepared to defend their actions in court, perhaps even at the highest level. In such cases, victims should speak to a lawyer before taking further action.

Conclusion

The Black Mirror episode “Joan Is Awful” underlines not only the importance of reading terms and conditions but also the potential legal and moral implications of overlooking the fine print. However, the highly dramatised nature of the episode may not reflect the true extent of legal repercussions. A closer analysis using an Australian legal perspective reveals that there would be potential avenues of relief for Joan Tait. Despite the fictional nature of the show, the significance of understanding contracts and recognising our rights must not be underestimated, especially in an age where we tend to sign agreements with technology service providers without a moment’s pause.

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