the Zealous

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.

Viktor Ovsyannikov has been practicing law as a public defender since 2018 with the Free Legal Aid Centre in Kyiv. He characterizes his career choice as "addicting," and one that causes his mother to occasionally "drink buckets of sedatives."

One of his first clients was the disgraced ex-president of Ukraine, Viktor Yanukovych, accused of treason in absentia. Yanukovych had retained five lawyers, but they left the session in protest. As a consequence, the criminal court asked the Free Legal Aid Center for a state-funded lawyer to protect the defendant’s rights.

Ovsyannikov was posted. He describes the experience: “The [Center] never gives the client's name first. They say you have an appointment for the defense tomorrow at 9 am. 'We'll send you the file and you'll see.' When I saw [that it was the Yanukovych case] my sleep vanished just like that." (Yanukovych was sentenced to a 13-year prison term for high treason, and is now living in exile in Russia.)

Like most Ukrainians, Ovsyannikov recalls with vivid detail the events of his life on February 24, 2022, the day Russia invaded Ukraine.

Personality may play a part. Lawyers are overwhelmingly introverts. Introverts often require more solitude for “recharging.” Add that to a heavy workload that values independence and perfection and there may be little time to build meaningful relationships. Also, lawyers rarely know how to practice self-care. Those serving at-risk and traumatized populations often don’t know how to deal with the emotions they hear of and often take on themselves. This vicarious trauma can lead some,  motivated by a concern about burdening others, to keep their struggles to themselves, thereby creating even more distance between them and their sources of support.

Employers have the specter of their lawyers not only in precarious health but also dispensing legal advice while in a debilitated state. Liability on a number of fronts raises its ugly head, as well as the costs and difficulty of replacing burnt-out workers.