Big Mistake(s)

The digital age has brought the imbalance of power between
prominent firms and individual consumers to the forefront.
Despite their proclamations of upholding democratic values
and prioritizing user well-being, online platforms routinely
deploy various mechanisms to disadvantage users and exploit
them. This Article takes on one of the thorniest legal challenges
that dominant online platforms pose: the often manipulative
ways in which they unjustly benefit from users’ attention, time,
and troves of personal data, which are intangible assets that
the law struggles to quantify and fails to adequately protect.
Leveraging the current legal landscape, online platforms tie
their users into contractual relationships that suppress their
rights while limiting the platform’s legal duties and obligations.
Responding to this reality, this Article contends that the
contract defense of mistake can be revitalized and adapted to
the unique circumstances of user–platform interactions.
Specifically, it explores the circumstances under which
platform users should be permitted to void their contracts,
sidestep provisions that limit access to justice, and seek
restitution and other remedies for their data, time, and
attention.
This Article makes three key contributions. First, it proposes
a novel framework for the doctrine of mistake, tailored to the
distinctive challenges of digital contracting. Second, it assesses
how a revised mistake doctrine could enhance consumer access
to justice even in view of arbitration clauses and other
contractual limitations. Third, it introduces and reevaluates
post-mistake remedies, paying special attention to restitution
and disgorgement in digital markets dealing with intangibles.
Ultimately, this Article seeks to reshape the legal framework
governing digital consumer contracts, advocating for a more
equitable and just digital marketplace.