While arguments could be made for both sides, I believe that using the hashtag “MayThe4th” might be sufficient enough to bind a Twitter user to Disney’s Terms of Services only if one can prove that the user was aware of the tweet made by Disney or saw it themselves before using the hashtag. Meyer v. Uber Techs., Inc. ruled that a smartphone app user has reasonably conspicuous notice of the app’s terms of service if a reasonably prudent user would have known about the terms and the conduct that would be required to assent to them. 868 F.3d 66 (2d Cir. 2017). Further, courts have often found that regular internet users, more than likely, understand and comprehend that they agree with a website’s terms when using it. Meyer.
Here, if one were to see Disney’s tweet, which plainly states that by using the hashtag, they are agreeing to their terms of use; it may be enough to satisfy both notice and assent. But, that may not be the case for many users, especially if the hashtag goes viral, which would make it difficult for users to track down the original tweet or the user doesn’t follow Disney. They would have no knowledge of Disney’s terms before using the hashtag, and if they don’t have the knowledge, they can’t be bound to the agreement.
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