But not just because it's 2018, although that's a fine reason to do a great number of things.

We're changing our Terms Of Service (ToS) shortly to address three things:

  1. Stack Overflow For Teams is launching soon, and we need to include stuff that talks about us expecting people to pay for it, and,
  2. GDPR is coming, and none will be spared its wrath we need to get ready for that.
  3. The new terms include an arbitration clause.

Arbitration is pretty standard for free online products, but if you really don’t like it, we included a way you can opt out.

Essentially, just procedural stuff, even if some of it sounds lawyer-y. But, legal stuff tends to sound, well ... lawyer-y.

You’ll get one of those annoying emails about it in the days ahead, but we wanted to give you a heads-up about it here now. We didn’t set out to change anything we didn’t have to on the user-facing side, but we did have to adjust some things to be consistent due to the changes for Teams, GDPR, and to bring it all up to date.

As always, you should theoretically read every word, but we wanted to call out the only things that we can find that are different for individual users on the public (non-Teams) Q&A sites.

If you have any questions about this, please feel free to leave an answer or a comment.

This change is live as of late 2018-05-02: https://stackexchange.com/legal/terms-of-service/public

Update

We have opened a separate discussion about the arbitration clause, and are currently revisiting how it is being implemented, specifically in ways users can opt-out. Please see the sidebar discussion if you (1) have concerns about it and (2) haven't seen it yet. We'll update both discussions once we've arrived at something we all feel better about.

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    Thanks for the heads-up. Can we get a diff when it's up? I did read every word once; I'd like to be able to focus on the changes this time. – Monica Cellio May 2 at 16:22
  • 66
    What does Arbitration Clause mean? – Pavel May 2 at 20:22
  • 83
    @Pavel Typically it means by using the site you agree that, for any legal action or complaint you may file with the court system, you will handle it via an arbiter decided upon by the defendant rather than going to court. Trying to go to court anyway will typically get your case thrown out if you have agreed to arbitration. It's considered a bad practice, ethically (and some argue that it is not legal), but it's still very popular because it saves a LOT of time and money for companies that deal with legal action a lot. – TylerH May 2 at 21:13
  • 25
    Since I'm not a native English-speaking lawyer, does this mean I have to stop using Stack Exchange now? – Lundin May 3 at 6:26
  • 72
    Can you please add an option to opt-out of arbitration via email? Sending mail to the US is hard, expensive, and slow. I doubt that it would even make it to your offices in 30 days, given the speed of our mail service. I'm really disappointed in this change. – angussidney May 3 at 7:23
  • 32
    Arbitration? I'm done. I'm clicking the logout button and not looking back. Shame on you, SO. For so, so many things. – George Cummins May 3 at 13:15
  • 30
    People are reacting strongly to the arbitration. Please listen to the community and either remove it or allow online opt-out. Please! – Joonas Ilmavirta May 3 at 13:57
  • 27
    @JoonasIlmavirta I'm talking to everyone involved now. – Tim Post May 3 at 14:07
  • 26
    “This change is live as of late 2018-05-02” – Don’t you need to at least notify all users via email of this change? – poke May 5 at 12:43
  • 20
    I didn't get any email yet – so I guess the terms don't yet apply to me? – Paŭlo Ebermann May 6 at 20:24
  • 22
    @TheJavaNub Maybe they are from people who just want to use the sites without having their democratic rights revoked and without wading through 10 chapters of legal crap? – Lundin May 7 at 11:55
  • 18
    Still waiting on an email to opt out of arbitration. Not to mention the ridiculousness of the situation (hence the current -89 score). If I can sign up electronically, I should be able to opt out electronically. That's a requirement in the EU, so I'm not sure what the problem is. – jhpratt May 7 at 19:07
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    @TimPost the extremely inconvenient method of opting out is only a small part of the issue. Even if you fix that, there is still no convincing argument by SE why the arbitration clause is necessary in the first place. Not to speak of the confidentiality clause, or the asymmetry in still allowing SE to sue users for IP violations. The problem is much bigger than the opt-out clause, and so far SE hasn't addressed that part at all. – Mad Scientist May 8 at 22:00
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    @TimPost I hope the update isn't just "don't worry about it, it's not as bad as you think!" but an announcement for actually changing the clause or limiting it to Teams/Jobs. – forest May 9 at 2:33
  • 29
    Okay, electronic opt out stuff was cleared (GDPR makes everything about this harder when it comes to adding even one more byte of information about users that we store), I still need to get direct answers to a few more questions that, if I post a follow up still unable to answer, will likely have rotten fruit thrown at me. In related news, I think our lawyer might be plotting my demise, if anything happens to me his name is a. – Tim Post May 9 at 18:26

21 Answers 21

Arbitration clauses are inherently abusive. An opt-out is not good enough. You should not have this clause at all.

[EDIT: See the expanded version of this post on the follow-up discussion specifically of the arbitration clause.]

  • 31
    This is messed up. I really hope there is enough pushback from the community that this is changed. – forest May 3 at 0:39
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    @forest fortunately SO the company is all about community feedback nowadays. – Andras Deak May 3 at 0:53
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    @AndrasDeak I genuinely can't tell if that's sarcasm or not. – forest May 3 at 0:56
  • 43
    @forest I can.‍ – Baum mit Augen May 3 at 0:58
  • 17
    @forest the PR department will get back to you in 6-8 – Andras Deak May 3 at 1:03
  • 40
    @forest if they had wanted our approval they wouldn't have posted this meta only 8 hours before go-live. We are cogwheels in the machine with no direct financial influence. – Andras Deak May 3 at 1:12
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    Well I've been sufficiently disillusioned. Shame you on, Stack Exchange Inc. – forest May 3 at 1:12
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    Here's one way the arbitration clause is abusive: if Stack Overflow massively screws up and, say, leaks every bit of personal data it has on anyone through gross negligence, joining a class action lawsuit against them would be free. With the arbitration clause, we would have to individually go through arbitration, which looks like it would cost each of us at least $250 per person just to initiate. They're basically invulnerable that way. They have much less incentive to uphold their responsibilities. – user2357112 May 3 at 2:18
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    For years, Wells Fargo used arbitration clauses as a weapon against the people it defrauded, and now Stack Overflow is joining the ranks of companies that want to arm themselves the same way. – user2357112 May 3 at 2:38
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    I've just mailed in my opt-out letter. Will I get a response in the mail? – Sonic the Anonymous Hedgehog May 3 at 2:52
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    I'm anonymous here, so I can't even send an opt-out letter... – forest May 3 at 3:17
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    @user2357112 The opposite argument is that civil litigation lawyers don't work for free. A good lawyer will cost you a lot more than $250 – Machavity May 3 at 12:16
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    I've deleted some of the comments here. Let's all stop pretending we're lawyers and stop spreading potentially wrong information in the comments here. If you'd like to ask whether or not arbitration laws are enforceable in the EU or whatever else, we have a Law site that would happily provide references to support their arguments. But that doesn't belong here. – animuson May 3 at 12:45
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    @animuson I just asked that question on Law. Let's see what comes out. – Adriaan May 3 at 13:44
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    @MountainLion I'm mildly amused that, after years of mostly ignoring meta.se, this post and its expanded version on the follow-up announcement have caused me to hit the rep cap seven days in a row and counting. The previous thing I posted here, by contrast, is currently at +8/-13. – zwol May 8 at 17:40

Please remove the arbitration clause. Requiring users to agree to arbitration strips them of the rights and protections afforded them by the legal system and allows the entity handing down the terms of service to bend any judgement to its own advantage.

Also, the requirement that any arbitration be conducted in English and in New York is almost certain to pose undue (and potentially massive) hardships for many users, especially those not living in New York and/or not speaking English (or not speaking it well).

Finally, I fail to see the legality of the numerous instances where the terms of service attempt to override existing and/or future laws (expressions like "any applicable law or statute notwithstanding" and whatnot).

EDIT: One more thing - please change the 30-day grace period for existing users opting out of parts of the terms of service to make it so that, rather than counting the 30 days from the moment that the terms of service are changed, it counts the 30 days from the first time that an existing user logs into Stack Exchange after the terms of service are changed. As it currently stands, a user on hiatus who does not visit any Stack Exchange site during any part of the 30-day period starting from when the terms of service are changed would be forced into accepting any and all changes, without any opportunity to object and/or opt out - despite the fact that they would have had no way to know of the terms of service being changed, and, hence, no reason to expect that they would be changed.

ANOTHER EDIT: Or, better yet, allow users to opt out at any time, rather than just during the first 30 days after the terms of service have been changed. And, also, please add an electronic opt-out method!

  • 3
    "ANOTHER EDIT: Or, better yet, allow users to opt out at any time, rather than just during the first 30 days after the tterms of service have been changed." -- I do not see the point of this. It would effectively remove the arbitration clause entirely, since anyone could just opt out at the point of any conflict. – hvd May 3 at 5:06
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    There is no requirement to conduct arbitration in NY. (This would not fly with JAMS: "5. The consumer must have a right to an in-person hearing in his or her hometown area".) There is a provision that SE can try to get a court injunction in NY iff you violate their IP. – Nathan Tuggy May 3 at 6:07
  • @NathanTuggy Good point - if the NY, NY requirement would cause JAMS to refuse to administer the arbitration, perhaps the TOS would then automatically trigger the 160-day delay and rollover to the American Arbitration Association. If so, the entire mention of JAMS is moot, and SE gets to wait an extra 160 days on any arbitration :) . – cxw May 3 at 12:24
  • CC @Jaydles - is there something I'm missing? – cxw May 3 at 12:26
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    @hvd Good. The fact that they nominally allow users to opt out, but only if they {log in, see the new terms, notice the clause, read the clause, understand its implications, and go through a formal opt out process, and all within 30 days of it being posted} is shady as hell, and is a pretty clear sign that the opt out clause is just there so they can say "see, this is perfectly fair to the users; they were even allowed to opt out". When a clause in a contract is genuinely optional, the normal way to indicate that is by not including the clause in the contract. – Ray May 3 at 19:30
  • @Ray You're responding to something other than what I meant and actually wrote. I didn't write anything on whether the arbitration clause should be there. I only wrote that I do not see the point an arbitration clause allowing opting out at any time, since if that would be acceptable to SE, it should be equally acceptable to SE and simpler to just drop the clause entirely. – hvd May 3 at 19:49
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    @hvd I didn't mean to disagree with you, but rather to elaborate on the point you raised. Since allowing opt out at any time would be equivalent to not having the clause in there in the first place, an opt out clause with a time limit basically means that they've included a clause specifically aimed at those who aren't paying close attention to the terms. Which is rather shady behavior. – Ray May 3 at 20:10
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    @NathanTuggy: There does seem to be a requirement that arbitration happen in New York: "You agree that, notwithstanding anything in the foregoing, any arbitration proceeding between you and us will be conducted in New York, NY, USA". This seems to violate Jams's rules. – user2357112 May 3 at 21:04
  • @user2357112: That's annoying, since I looked specifically for that and did not see it. – Nathan Tuggy May 3 at 22:11
  • I think "any time" would be pointless, since one could opt out the minute before entering a lawsuit with SE. Better just make the arbitration optional. – Nemo May 4 at 20:10

The new terms include an arbitration clause. Arbitration is pretty standard for free online products, but if you really don’t like it, we included a way you can opt out.

Is the opt-out going to be another one of those "limited time to mail us a physical letter" headaches, or will there be an online option?

  • 19
    Yeah, it's annoying. I asked about that, and apparently that language is "court-approved", so no one's very comfortable doing it another way. That said, I'll look into whether we can choose to honor electronic requests if we want to - I'd guess yes. – Jaydles May 2 at 18:30
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    @Jaydles Instagram has an electronic opt-out form. – Sonic the Anonymous Hedgehog May 2 at 21:09
  • 51
    @Jaydles GDPR Enforces a digital opt out for digital services, thought you (SE) should know, because it's driving us mad at work. – CptEric May 2 at 21:24
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    @Jaydles how does identification even work on paper? Are said lawyers aware that we are just fluid usernames and email addresses here? Can I opt-out in your name if I claim I'm Jaydles? I'm not a lawyer but this sounds ridiculous. – Andras Deak May 2 at 22:07
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    You have to write to them within 30 days with a signed statement, your name, email, etc., apparently. Otherwise you are giving up your rights. – forest May 3 at 0:35
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    Considering the lack of official feedback so far I asked a separate meta in a related subject, cc @Jaydles. – Andras Deak May 3 at 10:27
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    @forest Give up your anonymity or give up your rights?! – wizzwizz4 May 5 at 13:46
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    Close your account and just ask questions anonymously and don't bother moderating - that's the only alternative to this new change, right? – bye May 8 at 10:51

What are the consequences of opting out of the arbitration clause? On some sites it means you can't use the service; presumably that's not the case here. But if there's no consequence and anybody can opt out, it's hard to imagine what benefit the lawyers see in including it -- and so I assume there must be some difference. What am I missing?

  • 87
    The benefit is probably that most people won't opt out, so most people would now be forced into arbitration, and most is legally more beneficial than none. (Most people won't even know they can opt out because they won't read this announcement or the email or the TOS.) – doppelgreener May 2 at 20:26
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    @doppelgreener: That's not a benefit, that's a drawback. – Sean May 3 at 2:11
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    @Sean It's a benefit for the corporation. – forest May 3 at 2:19
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    @forest: And therefore a drawback for the community. – Sean May 3 at 2:24
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    For I example I have no idea what this is about at all, and why should I opt out. Not to mention the majority will accept TOS without reading. – Evk May 3 at 9:05
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    @Sean Stop thinking in zero-sums. Corporation could use saved legal fees by investing into features. Drawback for those who wanted to go to court, benefit for those who don't. – FooBar May 3 at 11:09
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    @Evk SE hires by accident Ugly Joe. Ugly Joe hates you, so he hacks SE to post falsified messages which makes you look like repugnant scum and gives out your real name and address. Your life is in shambles. In the US you can sue SE for damages and force SE to admit at the main page: EVK IS INNOCENT! With the clause SE does not need to do anything at all, but they will feel with you. Probably. – Thorsten S. May 3 at 11:11
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    It not being zero-sum also means it can be a loss for everyone: current PR backlash for the company and legal restrictions for the users. Depends on how much they value the prevention of class action lawsuits vs the public image impact. – Autar May 3 at 14:37
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    @FooBar It can be seen as a drawback even for those who wouldn't want to go to court if you assume the company would otherwise try harder to prevent things that might cause them to get sued (meaning, for example, your data would be better protected). But it's probably indeed a tradeoff. – Dukeling May 3 at 14:54
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    PR backlash? A week from now, everyone will forget. – Barafu Albino May 4 at 4:31
  • @FooBar and corporations could use the tax savings for all of their employees. But few do. – Theodore R. Smith May 7 at 3:48
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    @Evk: StackOverflow wants to be bought out (it's no secret). Say they get bought out and the new owner gets talked to by the U.S. CIA: "Sell to us all the details of anyone who knows how to make a cryptocurrency" and SO happily searches the relevant tags, gives them all the details they know about every key contributor. BAM! Those guys now end up in a kill list. Someone finds out. Well, they can only go to arbitration, one by one, and can't talk about it. Ever. – Theodore R. Smith May 7 at 3:49

I'm in Europe, Germany even, and I'm pretty sure that this won't need to be resolved before a US New York court.

From: https://www.transatlantic-lawyer.com/2017/12/__trashed/

Last but not least, the GDPR includes significantly increased penalties for violations: fines as high as Euro 10M or 2% of annual worldwide revenue in the preceding year, or Euro 20M or 4% of annual worldwide revenue, depending on the type of violation.

If Stack Overflow has some gross negligence that leaks "All the Data" or that my data is compromised and out of investigation it comes out that Stack Overflow hasn't complied fully with GDPR, I'm sure that the European courts will have a say in that, arbitration clause be damned. Microsoft and Google and Facebook couldn't beat the European courts, and I doubt a smaller player like Stack Overflow can.

There is no opt in for the clause; there is is no explicit agreement, and a TOS can never supersede the law over here. So the TOS as it will be implemented now will not be applicable anyway for European users. Not minding the parts that would not be in line with European laws and European court rulings.

For more information, read my answer here: We're examining the implementation of arbitration in the 2018 ToS update

I feel sad for American users though.

  • 2
    But does Stack Overflow have presence in Europe? If not, and if it's bank accounts are in the bank that also has no presence in Europe, it might not be that easy for European court to enforce payment of these fines. Feel sad for European businesses and web sites though... – artem May 3 at 8:26
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    If I, as a european user use Stack Overflow, then Stack Overflow has to treat me according to European law. That's why the GDPR is such a hot button issue world wide at the moment. And European courts can simply blacklist Stack Overflow in Europe until they pay. And a large portion of users come from Europe. Also the media backlash if a large company as Stack Overflow won't pay its fines would be massive. – Tschallacka May 3 at 8:27
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    @artem GDPR still requires them to pay up, as long as any affected users are EU citizens. The legislation includes a section that says that the EU will set up international cooperation efforts to ensure that companies outside the EU are held to the same standard. The details on how that will work are still somewhat fuzzy, but the EU is not backing down from it at all. – anaximander May 3 at 8:28
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    FYI: I mailed in my arbitration opt-out letter today. – Sonic the Anonymous Hedgehog May 3 at 8:33
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    a large company as Stack Overflow where does large start? – rene May 3 at 8:47
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    well, it has millions of users(8.8m) that counts as large(just counting users on stackoverflow stackexchange.com/sites). it means it's very influential and large. Moneywise it might be small, but influential wise it's large. – Tschallacka May 3 at 8:51
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    EU courts won't see it that way. They will look at userbase and the increased security expectations that comes with that. And the userbase at Stack Overflow is significant. I wonder if who the Data Protection Officer is at Stack Overflow and how he/she will do her work and if he/she can do that unobstructed to safeguard privacy. – Tschallacka May 3 at 9:42
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    As far as the GDPR is concerned I can see EU courts ruling them as a large data controller and processor (important in the context of GDPR) so they'd be subject to maximum fines even for single violations. – Magisch May 3 at 11:00
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    @Tschallacka I can just picture it. Day 1: EU blacklists and blocks SO completely for noncompliance. Day 1, several minutes later: Software development screams to a halt across the EU... ;-) – Ben I. May 3 at 18:24
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    I'm a citizen of Europe and someone who has studied the GDPR out of necessity; I'm not a lawyer, but there are a few things I know: the GDPR gives consumers the right to sue the company for GDPR violations. These rights can not be waived by a contract. And by no means can they be waived by a ToS agreement. In relation to GDPR, the arbitration clause is useless. Tschallacka is totally right here. - Disclaimer: I'm not a lawyer, don't take this as legal advice. – Michael May 3 at 21:53
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    @TOOGAM under GDPR, any website that Collects, Processes or Uses european citizien's personal data is subject to EU and GDPR law, wether the company is Bob's burguer's, 12304 potato street, California, USA or 12 Cold Breeze avenue, Sidney, Australia. Personal data includes network-wide user identifiers, email adresses, age, gender,sexual orientation, work metrics, biometric data, DNA samples, or any other form of personal individual identification. – CptEric May 4 at 6:50
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    eugdprcompliant.com/personal-data whitecase.com/publications/alert/… Without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority, in particular in the Member State of his or her habitual residence, place of work or place of the alleged infringement if the data subject considers that the processing of personal data relating to him or her infringes this Regulation. – Tschallacka May 4 at 9:45
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    @TOOGAM If you operate a website (or any other type of business) that collects or processes data from European citizens then you are required to comply with the GDPR with respect to those European citizens. Not doing so can lead to fines, which will be (tried to) enforced even for companies outside the EU, so you are wrong. You can try to ignore it, but you may not like the outcome if it actually comes to an enforcement action. – Mark Rotteveel May 4 at 18:00
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    @Tschallacka the bit about IP addresses is interesting. Is IP address of a bot which tries to guess passwords for my web site also personal data? – artem May 4 at 20:31
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    @MartinArgerami They can and they do, but they have less means to enforce it outside of their borders. – Mark Rotteveel May 6 at 7:56

You mention existing users will get an email providing them with an opportunity to opt-out of the new arbitration clause. Will new users signing up to the network after 2018-05-02 get this opportunity as well, or will they be locked in? Or am I misunderstanding that part?

  • I'm pretty sure all users can opt out. Gotta confirm. – Jaydles May 2 at 18:30
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    Confirmed. New users can opt out within 30 days of joining; existing can opt out within 30 days of the change. – Jaydles May 2 at 19:15
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    @Jaydles So a user who comes back to the site after a period of inactivity may have no chance to opt out? "within thirty (30) days of the date that you first accept these Public Network Terms" doesn't mean within 30 days of the change, it means within 30 days after coming back. – hvd May 2 at 19:41
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    @hvd I think they'll have 30 days from when the email goes out. – Jaydles May 2 at 20:12
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    So in other words, someone who's been on hiatus can't opt out. Got it. – forest May 3 at 0:46
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    @Jaydles Change is now life, where is the opt-out email?. When can we expect to receive it? You do not want to give the impression that you want to buy yourself time, especially when we still get no official response from the other thread asking exactly that. – Thorsten S. May 3 at 13:39
  • @forest Even if they are on hiatus they would still get the e-mail. – TylerH May 3 at 13:57
  • 2
    @ThorstenS. Tim Post in the OP said "You’ll get one of those annoying emails about it in the days ahead" (emphasis mine) – TylerH May 3 at 13:58
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    @TylerH Normal companies inform their users beforehand about changes in some future timepoint and add the information how to unsubscribe or opt out of changes. I do not like it where this is going. And what means days ahead? Tomorrow, in 3 days, in 30 days? – Thorsten S. May 3 at 14:11
  • @ThorstenS. I'm not defending their choices, I'm just explaining that they mentioned a rough time frame for when you would get an email, and it wasn't "tomorrow". – TylerH May 3 at 14:36

The terms of service claim that even visiting Stack Overflow constitutes agreement to the terms:

By accessing or using the Services or the public Network in any manner, including without limitation by visiting or browsing the public Network or registering for an account on the Network, you affirm that you have read, understand, and agree to be bound by these Public Network Terms, as well as the Acceptable Use Policy and Privacy Policy.

Is this legally enforceable? Particularly, does even visiting Stack Overflow constitute accepting the arbitration clause and waiving the right to have a jury trial or participate in a class action settlement, and does it start the 30-day clock to reject the arbitration clause?

  • 1
    Theoretical answer that would be better suited to Law.SE: yes, sort of. In the US, an unread TOS is enforceable as long as it doesn't contain anything a reasonable person would find unexpected. – Mark May 2 at 21:48
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    @Mark: Even for stuff like arbitration clauses? – user2357112 May 2 at 22:00
  • 6
    Law SE question about Germany (contains links about other jurisdictions, too): Does a German visitor implicitly agree to a website’s Terms of Service when reading a page? – unor May 2 at 23:47
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    @Mark now my follow-up question to that would be "is something insidiously twisted but actually quite common in most TOSs considered expected by a reasonable person" :p – user1306322 May 3 at 0:26
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    It's not legally enforceable. If they refuse to show up in court in my jurisdiction they might have the matter decided against them or possibly be subpoenaed. Last time something like this came up it was in Rob v. Google, you know whom lost. – Rob May 3 at 4:00
  • 1
    @Rob but they could show up in the court in your jurisdiction and bring a small team of lawyers arguing that you did agree to their terms of service and are now suing them in bad faith and therefore you should pay all their legal expenses – artem May 3 at 6:16
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    I think that especially the fact that the privacy policy is in effect 'automatically' would conflict with the GDPR, as almost everything that is stated their with respect to personal data has to be explicitly approved by the user owning the data. – Discrete lizard May 3 at 7:18
  • 1
    @artem - They could, it's happened before; you need to successfully argue that point, case by case. In certain countries the chances of an outsider winning against a citizen or a government owned company can be slim and nearly none. I know 'the guy' whom had the 'dog dispute' in Belize, his legal team got the case thrown out. – Rob May 4 at 2:09
  • It isn't. Bots don't read legal agreements. Bots don't notice legal banners. If you didn't ensure by some reasonable means it was a human and didn't demand authentication you've got bupkis. – Joshua May 14 at 1:11

The new TOS links to version 4 of the CC BY-SA, but the footer still links to version 3. Please clarify.

The help page should also match whichever version is decided on.

It would probably also be wise to explicitly state the version number in the TOS each time that BY-SA is mentioned.

  • 15
    +1 -- And it should be "CC BY-SA 3.0", not "CC-BY-SA 3.0" (i.e., no hyphen between "CC" and "BY") – unor May 2 at 23:54

I'm pleased to see that it looks like the old unenforceable and trademark violating attribution requirements have been removed from the TOS! Hurray!

Please also remove them from the page footer and the help page.

Are the SE additions to the Creative Commons attribution requirements enforceable?

Does the Creative Commons Attribution-ShareAlike licence allow you to specify exactly how attribution must be given?

I asked about this on the Law site and @chapka pointed out clause 8(e) in the CC BY-SA 3 license:

This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

This is an "integration clause", and its effect is that there can be no further restrictions than what the license itself says. So Stack Exchange is not allowed to add further restrictions, the blog post is unenforceable, and it should not be referenced in the footer.

Forget not enforceable, it's a blatant violation of the CC trademark usage terms. They even address this exact situation: "We also advise against modifying our licenses through indirect means, such as in your terms of service.". – William Kappler

https://creativecommons.org/faq/#can-i-change-the-license-terms-or-conditions

CC does not assert copyright in the text of its licenses, so you are permitted to modify the text as long as you do not use the CC marks to describe it. However, we do not recommend this. We also advise against modifying our licenses through indirect means, such as in your terms of service. A modified license very likely will not be compatible with the same CC license (unmodified) applied to other material. This would prevent licensees from using, combining, or remixing content under your customized license with other content under the same or compatible CC licenses.

Modifying licenses creates friction that confuses users and undermines the key benefits of public, standardized licenses. Central to our licenses is the grant of a standard set of permissions in advance, without requiring users to ask for permission or seek clarification before using the work. This encourages sharing and facilitates reuse, since everyone knows what to expect and the burden of negotiating permissions on a case by case basis is eliminated.

SE should stop using the CC logo

"Attribution Required" misses requirement to reference the license

In section 10d, there is a typo: "Modifictions":

"Modifictions"

If I understand correctly, anonymous users cannot opt out of arbitration. Therefore anonymous users are treated differently from the rest. Do I understand correctly? And is this intentional?

I asked a separate question about opting out when anonymous.

The opt-out does not seem practical, and this is just one symptom. Another one is that opting out is not free; mailing a letter costs money. The amount of money may be negligible for most, but this is a matter of principle.

I have read the whole ToS so far and haven't found anything out of order yet, the arbitration clause has already mentioned.

I have some questions to the Acceptable Use Policy:

Hate Content, Defamation, and Libel. Hate speech and other objectionable content that is unlawful, defamatory, and fraudulent.[...]

How is this sentence meant? Does it mean "Hate speech and other objectionable content that is unlawful, defamatory, and fraudulent" (so that unlawful, defamatory and fraudulent is the key characteristic) or does it mean "Hate speech and other objectionable content that is unlawful, defamatory, and fraudulent"? (Hate speech is a separate category and differently handled).

If the latter is meant, how exactly is "Hate speech" as separate category for SE defined? There are several very distinct definitions, from very lax (USA) to very restrictive (Germany, parts of EU). Are they simply violations of the "Be nice" policy, are they including the ICCPR guidelines, are they including outlawed statements in some countries (Holocaust denial, Armenian genocide)?

What are in short the guidelines to decide what is "Hate speech" for SE?

  • I'd read that sentence clearly with the latter meaning. – Andras Deak May 2 at 22:22
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    @AndrasDeak Common sense and possible interpretation by law are unfortunately two different things. – Thorsten S. May 2 at 22:29
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    Does it really have to be 'unlawful and defamatory and fraudulent' to be objectionable? Shouldn't the and in the quote be or? – Jonathan Leffler May 3 at 1:10
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    It really needs a comma doesn't it? Something like Hate speech , and other objectionable content that is unlawful, defamatory, or fraudulent... – dbc May 3 at 18:45
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    Such sentences are plainly silly and should be removed. If something is unlawful, defamatory or fraudulent, it's already illegal and there is no point prohibiting it with a private content. Also, how much fraudulent content is not "objectionable"? – Nemo May 4 at 17:55
  • @Nemo There is a point to these sentences. By default in case of unlawful behavior the law will go after the offenders but SO is fine with it. The sentence changes that so that additionally to the law SO will act, which is not obvious because SO usually doesn't handle law-enforcement. – nwp May 7 at 21:56
  • @nwp I understand the aim, but bad language will not help. Moreover, "usually doesn't handle law enforcement" is a feature, not a bug, as we should have learnt about CFAA. – Nemo May 7 at 22:36

In the public legal stuff in paragraph 3. Age Eligibility it says:

If you are located within the European Union, you must be at least 16 years old to access or use the Network or Services

In the privacy policy in paragraph How We Collect Information sub If you’re under 13, we want to mind our own business, not yours. you state:

We do not knowingly collect any personally identifiable information from children under the age of 13.

I expect the public ToS and privacy policy to be aligned on the age. Mention the age of 16 in the relevant parts of the privacy policy as well, headings and articles.

  • You should also change the subheading to "if you're underage, ..." – Sonic the Anonymous Hedgehog May 3 at 9:29
  • @SonictheInclusiveHedgehog yeah, made that explicit, thanks. – rene May 3 at 9:32
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    I suspect those two ages are different for specific reasons. 13 is the age where US COPPA kicks in, and companies need to actively avoid collecting data (and potentially remove accounts as found). It sounds like 16 is an EU relevant age where just telling users not to use the service is enough to be compliant. – mbrig May 3 at 15:09
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    TLDR: if you're an American 15 year old with an account, they are collecting PII from you. – mbrig May 3 at 15:10
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    There's no reason to expect those two ages to be "aligned". For instance, they might derive from different legal compliance obligations. Law in the US and in Europe is not aligned, so it's no surprise that some Europe-specific terms might be a bit different from terms that apply to everyone. In any case, Stack Exchange is free to choose two different ages for those two clauses. This answer does not identify specific, articulable harms that are caused by this difference or a compelling reason to change the ToS. – D.W. May 3 at 16:23

Please clarify European age restrictions.

The new TOS says, after the paragraph setting a lower bound of age 13:

If you are located within the European Union, you must be at least 16 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow Account Registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 16 years of age. If you are under 16 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner (etc)

"Located within" is pretty vague. Do you mean "reside in"? Or does a teen who lives elsewhere but who visits Europe (perhaps on a family vacation) violate the TOS by checking a site while there? It'd stink to get your legitimately-created account nuked because you let it be known that you were visiting Europe while 13-15!

  • I guess that's to avoid some EU regulations that apply only if you have visitors below that age. In that case, it probably would have to apply for everyone located in the EU while accessing the site, even when just travelling, in order to fulfil its purpose. – celtschk May 4 at 7:34
  • By the words, I'm inclined to believe that "located within" includes a tourism visit to the EU. Must find some better wording here. – ɪʙᴜɢ May 5 at 8:32
  • @ɪʙᴜɢ I can believe that's what the lawyers meant. I'm not assuming it's what SE meant. – Monica Cellio May 6 at 2:02

Is there a specific breakdown of the ToS as to which change addresses what need and how (admittedly, I'm mostly interested out of sheer curiosity, like what are you doing as far as GDPR, but I'm sure plenty of people would want to get into the weeds of legalese to understand in-depth).

Annex 1 of EU directive 93/13/EEC on unfair terms in consumer contracts might provide some guidance. You might want to avoid

(c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone;

  • e.g. the "sole discretion" stuff in sections 4 and 10d

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

  • e.g. the agreement on the jurisdiction of the Courts of the State of New York in section 10a
  • potentially the mandatory arbitration clause in section 10b

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

  • e.g. introduction of the mandatory arbitration clause in section 10b, without giving a reason how that contributes to "better provide Services and Products to the Stack Overflow community"

(m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

  • again the "sole discretion" stuff in sections 4 and 10d

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

  • particularly the mandatory arbitration clause in section 10b.

Besides, there are two uses of the adverb irrevocably in that ToS version:

  • for content licenses, where I suppose that is how things must be;
  • for mutual agreement on the jurisdiction of the Courts of the State of New York (section 10a). Despite the reservation of SE's right to change the ToS (section 10d), I understand this as implying that SE cannot effectively remove nor change the jurisdiction clause in 10a. You might want to delete the irrevocably there.

I never received any notification to join or opt-out of the new arbitration clause, so do I need to be worried about not getting any emails, and is there going to be any fee if one joins the SO Teams forum?

What are the steps for me to opt out of the arbitration clause?

Is it illegal to use stack exchange at work?

Any other downloading, copying, or storing of any public Network Content (other than Subscriber Content or content made available via the Stack Overflow API) for other than personal, noncommercial use is expressly prohibited without prior written permission from Stack Overflow or from the copyright holder identified in the copyright notice per the Creative Commons License.

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    "other than Subscriber Content or content made available via the Stack Overflow API". 'Subscriber Content' / API content includes every tag, question, and answer on the site. So all that content is fair game for use at work – JKillian May 21 at 21:33
  • Also note that it says "any other downloading, copying, or storing of any public Network Content". Presumably regular web browsing does not fall into that category. – JKillian May 21 at 21:34

I for one fully support your decision, although it is unfortunate that US legal system forced you to do this unpopular move.

For those not familiar with US legal system: there is no looser pays so sometimes people initiate class action lawsuits just so that they could get the settlement money(that is cheaper for the company than proving they are innocent in court).

One especially ridiculous example of this is suing gas stations because (drumrolls) physics.

For people worried that arbitration will be "fixed": both SO and the arbiter have their reputation on the line so if they make obviously biased decision it will cost them their reputation and revenue.

UPDATE: If this arbitration effort goes forward, on 1 June 2018, one day before the clause goes into effect, I will do the following:

  1. I will view StackExchange as a potential enemy of the movement toward more free societies.
  2. I will create an open source markdown repository on both GitHub and GitLab and on a site that I own containing all of my questions and answers for which I own the copyright to on Stack Exchange sites.
  3. I will delete all of my questions and answers on all Stack Exchange sites.
  4. I will open up the site for others to do the same. If I can find an API to automate this migration, i will do so, too.

We are hacktivists. We have legal abilities to effect the hands of tyrants. Don't forget that.


Let's say you are an active member on a site like StackOverflow, or worse, Facebook. I have a 10,000+ rep, so it's safe to say I'm in that category.

Now say that you have agreed to an Arbitration-only clause, or even the exact clause StackExchange wants us all to agree to.

NOW say that the site admins / developers do something REALLY STUPID (like store all your passwords in clear text in a semi-publicly-accessible log file (::cough:: Twitter). Or what if a dev does something down right evil, resulting in harassment, or even death, or something truly terrible, based on inside info (say, IP addresses) or gaming the system for employers, all sorts of stuff.

What if StackExchange decides to get in bed with a government agency, not even your own government agency, that wants to track and spy upon and collate the information EVERYONE who knows certain hacking techniques? Know about RIPS security software? They could do so for money, you know. Lots and lots of value in that information.

Well, as of right now, all of the affected could sue the company for, say, negligence in handling their stuff. A class action lawsuit would cost nothing to a mere handful of dollars, thus causing large sites, like Stack Exchange, to be very careful in their business dealings.

After you sign the arbitration clause? You're going to be going to a figurative kangaroo court, hand-picked (and stated in writing) by the Wrong Doer, that 80%+ of the time sides against the little man (you and I) because the Oppressor pays their bills.

Now, imagine if all these big sites had thought to add these clauses in their Agreements 10 years ago? Hell, we'd already be living in a dystopia! For sure!

If the max fine they could get slapped with is like $1,000, suddenly this "spying for the NSA" crap looks much more profitable. Maybe (certainly?) not for the current corporate owners, but it's one CEO-change away from becoming a reality, and do NOT THINK that this does not happen in other avenues.

StackExchange profiles EVERY DEVELOPER on the planet! Ethical hacktivists, biohackers, cryptocurrency developers (me), peer-2-peer innovators (me), secure communications developers (me), we are all systemic threats to The System and virtually every non-free government on Earth.

We cannot let the platform which we have all, monopolistically plied our questions and answers on, adopt this insane arbitration clause. At least not for non-Europeans.

Boycott arbitration clauses for EVERY site where you leave personal information or a way to catalogue and reference a high percentage of people in disruptive crafts. The last thing we want is for the arbitration virus to spread across all websites and all of our lesser intelligent, lesser aware, less awoke friends and family falling victim to them, and taking down society with them.

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    Deleting your questions and answers might not be that useful; from the terms of service: You agree that any and all content, including without limitation [...] (collectively, "Content") that you provide to the public Network (collectively, "Subscriber Content"), is perpetually and irrevocably licensed to Stack Overflow [...] pursuant to Creative Commons licensing terms (CC-BY-SA), and [...] access, use, process, copy, distribute, export, display and to commercially exploit such [...] Content, even if such Subscriber Content has been contributed and subsequently removed by you. – Kasper van den Berg May 10 at 20:35

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