Legal Question in Technology Law in California

Hi,

A part of the YouTube TOS says the following:

"12. Ability to Accept Terms of Service

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you."

Given that contracts with a minor are voidable by the minor, can this type of clause realistically be enforced if a minor or a parent sued for harm done to the minor as a result of a video they uploaded?

I am specifically talking about a minor who is not emancipated, and does not possess legal parental or guardian consent. Of course a website operator would have no way of knowing if a minor using the site has parental consent and it seems pointless to ask the minor to affirm that they have parental consent since that affirmation itself (it seems to me) would be voidable by the minor.

Thanks


Asked on 10/31/10, 12:48 am

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Anyone who misrepresents his or her eligibility to make a contract is committing a tort. The laws limiting the capacity of a minor to make a binding contract do not deal with the issue of a minor's culpability for making a tortious misrepresentation. Perhaps more important, the purpose of the clause is not that it itself become an enforceable term of a contract, but rather to deter minors from attempting to enter into the contract in the first place. They are saying "We don't want kids without permission using our service."

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Answered on 11/05/10, 8:54 am


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