Social Media & Contractual Capacity of Minors  

( written for PIPSELF Blog ).

Recently, Facebook, Inc. added a new money-making feature called Promote.  This new link enables Facebook users to promote their posts via Facebook by paying seven dollars.[1]   I believe that Promote presents various legal issues, including, whether Facebook, which allows thirteen-year-olds to sign up and use its vast social network, should be more vigilant to ensure that minors will not make frivolous contractual obligations on its website. 

Facebook has a huge user base of minors in the United States daily navigating its popular website.  “Over fourteen million Facebook.com users in the United States are under the age of eighteen”.[2]  To join Facebook.com, a user must provide his or her name, age, gender, and a valid e-mail address, and in exchange for providing this information, a user enters into a contractual obligation with Facebook. [3]    A minor can easily provide the above information and become a user. 

Being a mother of a minor, I decided to test drive this new feature.  I found it is extremely easy for minors to start using Promote feature.   Additionally, to my surprise, I discovered that the disclaimer warnings were inadequate:   ”If you are under the age of eighteen (18), you may use Facebook Payments only with the involvement of your parent or guardian. Make sure you review these Terms with your parent or guardian so that you both understand all of your rights and responsibilities. “[4]   As one can anticipate, the warning above is inadequate because a minor can easily enter in a contractual obligation with Facebook without obtaining his/her parent’s consent. 

Under common law, minors are protected by the doctrine of infancy against entering into unwanted contracts.    “No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties.” [5]   The infancy doctrine may not be used to keep the benefits of a contract while reneging on the obligations attached to that benefit.[6]  Thus, “[i]f an infant enters into any contract subject to conditions or stipulations, the minor cannot take the benefit of the contract without the burden of the conditions or stipulations.”[7]

In conclusion, Facebook should be more vigilant in matters involving minors entering into contractual obligations on its website.   Further, Facebook should implement more safeguards to prevent children from entering into contractual obligations that are against public policy.    I also recommend that Facebook use video clips to provide more adequate warnings to children and their parents. 

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[1] See generally Facebook Enter Your Credit Card Information Policy, available at https://secure.facebook.com/giftcredits/index.php?context_id=3943501071297&is_redirect_secure=1&add_num_credits=70&use_payment_engine=false.

[2] E.K.D. ex rel. Dawes v. Facebook, Inc., CIV. 11-461-GPM, 2012 WL 3242392 (S.D. Ill. Mar. 8, 2012).

[3] Id.

[4] See Facebook User Payment Terms, available at https://www.facebook.com/payments_terms/.   

[5] Restatement (Second) of Contracts § 12 (1981).

[6] See, e.g., MacGreal v. Taylor, 167 U.S. 688, 701, 17 S.Ct. 961, 42 L.Ed. 326 (1897).

[7] 5 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 9:14 (4th ed. 1993 & Supp. 2011) (collecting cases).