A recent US district court decision in a lawsuit brought by Facebook and Instagram carries important lessons for counsel in the drafting and negotiation of survival clauses—clauses that purport to extend the operative effect of contractual obligations beyond the termination or expiration of the relationship.
The case is Meta Platforms, Inc. v. Bright Data Ltd. (ND Cal 2024).
Meta Platforms, the owner of both sites, brought a breach of contract action against Bright Data, alleging that Bright Data violated online terms of service and use by scraping (anonymized) user data and selling access to analysis of it. The terms of both sites prohibit the collection of user data via automated means and the selling of such data.
In adjudicating cross motions for summary judgment, the district court held that the Facebook and Instagram terms do not prohibit logged off public data scraping even during periods when the scraper has an account. More importantly, scraping after termination of such accounts, the court ruled, was likewise not prohibited—despite the existence of a survival clause that purported to extend the applicability of the anti-scraping clauses beyond termination of the user’s accounts.
The survival clause in question stated, “If you delete or we disable or delete your account, these Terms shall terminate as an agreement between you and us, but the following provisions will remain in place …,” listing sections among which included provisions prohibiting the automated collection and sale of user data.
The court cited caselaw for the proposition that perpetual obligations are disfavored. The court moreover accepted Bright Data’s characterization of the clause as being ambiguous. The survival clause operated to preserve breach claims brought post-termination for actions that violated the terms prior to termination, the court held, but did not with sufficient clarity operate to impose prohibitions on otherwise permissible conduct post-termination. Absent terms to the contrary, the purpose of the survival clause is to “address enforcement of claims arising from pre-termination conduct, not to create lifetime bans for conduct unrelated to parties’ contractual relationship.”
The lawyers of Redline have posed strategies and clauses to further the objective that Facebook and Instragram were pursuing. Engage the debate here.
