Lawyer explains how realistic “Joan is Awful” really is

The sixth season of the dystopian Netflix series Black Mirror kicks off with a hotly debated episode called Joan is Awful. In it, a run-of-the-mill woman named Joan (played by Annie Murphy) discovers that her life is suddenly being duplicated by a TV series.

Joan in the series is played by Salma Hayek – or an avatar who looks like Salma Hayek, since the entire series is said to be AI-generated.

The streaming service Streamberry is responsible for the series, which in turn clearly copies Netflix. When Joan subsequently consults with her lawyer, she receives the information that she has no rights against Streamberry because she agreed to the terms and conditions when concluding the contract.

Without spoiling too much: The episode sends shivers down your spine. Because – hand on heart – who reads the terms and conditions from cover to cover when you conclude a contract for the use of an online service like Netflix? Hardly anyone.

So, in theory, would it be possible for a company like Netflix to make a series about you? We have Hartmut Göddecke, specialist lawyer for contract law from the law firm Goddeck Lawyersasked.

t3n: Mr. Goeddecke, how realistic is the case of the episode “Joan is Awful”? Can a broadcaster just clone a person, make a movie with them, and air that movie at prime time?

Hartmut Göddecke: Of course, general terms and conditions in Germany have limits, the legislator has made sure of that. If you accept the terms and conditions of a contract in everyday life – regardless of whether by clicking or by signing a form – you are protected from unfair conditions.

t3n: What does “unfair” mean here?

Göddecke: This includes – generally speaking – everything that is prohibited, i.e. anything that constitutes a criminal offense or an administrative offence.

Even unclearly worded and incomprehensible terms and conditions are invalid. The legislator has drawn a clear limit here, because it should not be the case that someone who uses incomprehensible clauses is protected. In such cases the tide turns: whoever is burdened with such a clause should claim the protection of the law.

In addition, the law has put a stop to unpleasant surprises in the general terms and conditions. They are also null and void.

t3n: One can, for example, describe the clause from the said Black Mirror episode as “surprising”, which states that the fictitious broadcaster Streamberry shoot a series about anyone who agrees to the terms and conditions. Or?

Goddeck: Yes. Illumination of one’s own life agreed in German terms and conditions and reproduction in a television program is in most cases not permitted.

But that is not a question of the terms and conditions: because the person who can be seen in the film has a general right of personality. This means that a person can basically feel free to decide whether they want to be the subject of a film report themselves. If she does not want it, this right cannot be determined by general terms and conditions.

On the other side – i.e. opposite the general right of personality – are the rights of the press and art (freedom of the press and freedom of art). For example, a person who is generally in public life must expect to appear in the media (e.g. football players, high-ranking politicians or film actors).

A person who, as in the film of the Netflix series, only lives their life “quite normally” does not have to expect that their general personality rights will be restricted to such an extent that they will not be reported on in the media against their will The subject of a feature film is – regardless of whether it is played by an actor or by an AI-inspired clone.

t3n: Also the way data is collected in the show would be illegal, right?

Göddecke: Yes, because the General Data Protection Regulation (GDPR) sets restrictions when it comes to collecting data. No more data may be collected than is absolutely necessary to fulfill the contract (so-called “coupling ban”).

In addition, express consent is required for the collection of data – a click on the General Terms and Conditions button is not sufficient. In addition, the consent can be revoked with effect for the future.

t3n: In short – the scenes broadcast on Netflix, after which any person would find themselves on television in this way, would not be permitted in Germany?

Göddecke: Exactly. This cannot be determined by general terms and conditions as part of an x-contract, nor is it permitted by law. It would be different, of course, if it were about a contract that had the precise scenes described as its subject. In practice, however, it is not unusual for general terms and conditions to contain surprising clauses.

t3n: Do you have an example?

Göddecke: One example was the clause of a WLAN operator at a festival, according to which the users of the free WLAN undertook in one of the clauses that they had to clean the showers after the festival.

When asked at the end of the festival to request the cleaning of the shower, the addressed users reacted with complete surprise, because apparently nobody had read the conditions of use.

Such a clause is surprising and ultimately ineffective.

t3n: So can you save yourself reading the terms and conditions?

Göddecke: No, of course, consumers who accept the terms and conditions must read them before agreeing (i.e. before clicking).