A new (2018) update to our Terms of Service is here

Question

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.

Answer 1

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.]

Answer 2

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!

Answer 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.

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?

Answer 4

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?

Answer 5

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.

Answer 6

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?

Answer 7

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?

Answer 8

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.

Answer 9

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

Answer 10

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

Answer 11

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.

Answer 12

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?

Answer 13

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.

Answer 14

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!

Answer 15

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).

Answer 16

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.

Answer 17

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?

Answer 18

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

Answer 19

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.

Answer 20

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.

Answer 21

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.