Friday, October 23, 2009

Can you consent inadvertently to be terrorized by a fictional stalker?

I wish I could find the form Toyota claims constituted the victim's consent to allow a friend to freak her out by convincing her she was being stalked. Here's how Toyota described the "promotional campaign":
YourOtherYou is a unique interactive experience enabling consumers to play extravagant pranks. Simply input a little info about a friend (phone, address, etc.) and we'll then use it, without their knowledge, to freak them out through a series of dynamically personalized phone calls, texts, emails and videos. First, one of five virtual lunatics will contact your friend. They will seem to know them intimately, and tell them that they are driving cross-country to visit. It all goes downhill from there. The Matrix integrates seamlessly into the experience and you can follow the progress of your prank in real-time online. Each piece of the campaign assures that the experience is as Google-proof as possible.
Now, according to techdirt, Amber Duick, who had been victimized by the prank, has sued Toyota, alleging among other things that she "'had difficulty eating, sleeping and going to work' after receiving a bunch of phone calls from this prank, believing that some 'lunatic' stranger was on his way from England to see her. At one point, she even received a bill from a hotel that this stranger supposedly 'trashed.'" Apparently, Toyota believes Duick agreed to be victimized in this matter!
How does Toyota defend the campaign? By claiming that Duick agreed to it. How, you ask? Well, Toyota sneakily inserts "permission" into a personality test it sends the "victim" of the prank, from the "friend" who initiated it. It's difficult to see how that kind of agreement stands up in court. Hiding an agreement for something entirely different (and pretty damn creepy) inside the agreement for a personality test from a friend? How is that informed consent?
It would be interesting, I think, to compare this consent form to those in which parties agree to arbitrate their disputes. Would you enforce a provision in an online agreement to purchase a book from Amazon that also included consent to be terrorized by a fictional stalker? And if not, why would you enforce an arbitration agreement that deprives the buyer of any feasible remedy for a legal wrong by the seller?

2 comments:

  1. Amanda Vintevoghel10/28/09, 12:17 PM

    I don't understand how this could be enforced at all. At least the arbitration clause deals with the purchase itself,so it being included in the provisions makes sense. Having a fictional stalker does not deal with purchase in any way, so I don't understand how it can be included in a provision dealing with a purchase. Where would you draw the line with what could be included?

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  2. I would have to agree with Amanda. The stalking issue does not fit when dealing with either scenario. Even if someone purchased a book on Amazon and clicked the "I Agree" button, would a person in similar circumstances reasonably see that from this purchase, I expect someone would stalk me? I could see that in signing a form for visiting a haunted house, but not purchasing a random book or dealing with a car manufacturer. This sort of reminds me of the online advertisers who, through cookies, can save your information and searches that you have conducted and use them to lure you in to tailored products that you would be interested in. They even go as far as "talking" in a sympathetic manner. One time I recieved a message about how one company "knew times were hard and being a student was a challenge in this economy...and how this "product/service" has been known to help students all over. They even go as far as including information on religion. Its funny when you know its a joke but actually believing your being stalked is much different.

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