An update to Discord’s terms of service is making it harder for gamers to sue them should they fail to perform their function ethically, as tech companies are wont to do.
The update comes underneath their Dispute Resolution and was modified on October 16, 2018 but wasn’t noticed by many until last night when Twitter user @aeonlamb stated that a new clause means users must forfeit their right to sue them or take part in a class-action lawsuit. The only way to opt out of this is to email Arbitration-opt-out@discord.com within 30 days, meaning the deadline is November 15, 2018.
Hey, so apparently Discord decided to quietly update their TOS with a clause that says you must forfeit your right to sue them or take part in a class-action lawsuit.
There's a way to "opt out" if you do so within the next 30 days by emailing arbitration-opt-out@discord.com pic.twitter.com/vcBYWFeKud
— Vivian aeon! (@aeonlamb) October 18, 2018
A screencap accompanying the tweet included a handy FAQ from “Danny”:
Is this enforcable?
In the United States, yes. This was decided by the Supreme Court in 2011. See https://gc.gy/7538114
This links to the legal dispute AT&T Mobility LLC v. Concepcion in 2011 that went to the United States Supreme Court and whose decision meant that businesses whose arbitration agreements with class action waivers can require consumers to bring claims only in individual arbitration instead of a class action. Arbitration resolves disputes without the courts and is frequently less expensive and won’t create a precedent with the proceeding decision. This is preferable to companies than a class action in which a group of people are able to collectively bring a lawsuit to a company. While the 2011 decision made it harder to create a class action lawsuit, a State may still determine if a contractual waiver is “unconscionable.” Arbitration sees the single person against a company that holds much more wealth and power, whereas in a class action there is a collective group that can pool their resources together.
In Europe, no. There are many clauses, a relevant one is Article 77 of the GDPR (“Right to lodge a complaint with a supervisory authority”)
GDPR (General Data Protection Regulation) was a recent legislation implemented in the European Union that required the disclosure of information a service is gathering while someone is using it. This meant Steam had to disclose information such as purchase information and reports against games or other users. Some multiplayer games ran into conflict as updating their backend was too expensive to justify doing so, shutting down Loadout and Ragnarok Online.
Why does this matter?
Without the ability to congregate for a class action lawsuit, if Discord ever leaks your data or does something catastrophically bad to a large portion of the population you have no way to representatively sue together without each of you individually suing via the arbitrator
Many tech companies (and regular companies not based entirely online) that gather data on their users have experienced “leaks” of that data and some companies aren’t very active at protecting that data or disclosing the leaks.
Please see the following article: https://gc.gy/7538130
Essentially:
- Your right to file a complaint in the court of law is removed
- 2. The arbitration system tends to heavily favor the company rather than the consumer.
- Since your right to pool similar complains together is taken away, the amount of damage you can do to a company that has wrong you significantly is limited to those who are willing to arbitrate.
Why should I care? Other companies do this too!
By learning about this I hope that you will be more conscious about these arbitration clauses and how anti-consumer they are. You can’t change the past, but you surely can’t predict the future either.
If you don’t see yourself as someone who would have legal issues with Discord in the future, this may be entirely irrelevant to you. However, what binding arbitration clauses do is act as a way for companies to avoid hefty litigation fees and court appearances. If you agree to the terms of the contract, you are expected to raise any issue with an arbitrator (instead of a court) which will be judged in a private capacity. The process is cheaper, typically more burdensome for the consumer (who may need to travel to Discord’s place of business), and typically tends to fall down on the side of the corporation.
Discord has recently launched a digital storefront of their own, meaning that they will now be gathering your financial data for transactions made through their store, which coincides with the change in the terms of service to protect them should your financial data accidentally be accessed by someone else.