Minors, Consent, and Facebook: Why Disaffirmance is Insufficient to Protecting Minors’ Privacy on Social Media | Vol. 28, No. 1

Mar 2, 2023

Rachel Dow

Teens increasingly live their lives online. Surveys estimate that teens spend at least four hours per day on social media and over eighty percent of teens use Instagram. As such, the ability for minors to contract with these online services raises a variety of concerns, particularly about consent. Generally, a minor can provide consent in two ways: (1) a parent or legal guardian can consent directly on their behalf; or (2) a minor can consent directly, but the contract is subject to disaffirmance. In June 2021, the California Legislature unanimously passed AB 891. The bill was a reaction to the increasing prevalence of representative consent provisions in contracts for online platforms. Online companies use such provisions in an attempt to establish that a minor’s representation of their parent’s consent constitutes a legally enforceable contract that is not subject to disaffirmance.
In this paper, I argue the focus on disaffirmance as the tool to protect minors contracting online is misplaced when dealing with social media. Social media presents different contexts and challenges to consent than the traditional marketplace, upon which the principal of disaffirmance was based. The focus should instead be on whether minors can consent to these platforms’ terms of service at all because of the lack of transparency around the collection and commercialization of personal data, algorithms that purposefully amplify harmful content to increase engagement for purposes of increased profit, and the lack of viable alternative platforms. Instead of focusing on the decisions of minors and disaffirmance, as is the case with AB 891, we should instead emphasize approaches such as adopting the GDPR’s definitions of consent and various avenues to hold platforms liable under tort law for harms to minors resulting from social media.