How can we opt out from the arbitration clause of the new terms of service?

Question

The new Terms of Service went live yesterday following an 8-hour heads-up on meta. One key change that was mentioned as an aside with no real explanation is the new arbitration clause.

Opt-out appears to be possible only via snail mail, according to the ToS and an unsure comment by an employee. Let's ignore for a second that allowing opt-out via snail mail is equivalent to giving every user the finger. Let's also ignore the highly controversial and questionably ethical nature of arbitration clauses, which I had to look into myself since the company gave no real explanation what it's all about. (Some users did.)

So how do we opt out via snail mail? How do I identify myself? The company barely knows any personal details about me. How can I opt out or make sure that others don't opt out on my behalf if I don't want to? What are the exact contents of the letter that has to be sent to the company so that it won't be deemed illegitimate by the kind lawyers at Stack Exchange, Inc.? Note that we have only 30 days (give or take) to opt out, and snail mail to the U.S. is slow around the world.

Answer 1

Such clauses are unenforceable in the EU, so no need for EU citizens to manually opt out.

See the European Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. Basically, there is a presumption that pre-dispute arbitration clauses in consumer contracts are invalid, and it is the task of the business to demonstrate their validity.

It many E.U. members states the law is even stricter; e.g., in Germany forced consumer arbitration clauses are deemed valid only if included in a separate notarized document.

Answer 2

I was one who mailed them an arbitration opt-out letter. Not sure if this is exactly acceptable, but here's what I wrote:

Name: [my full name]

Email: [my email address]

Mailing address: [redacted]

I do not wish to resolve disputes with Stack Exchange, Inc. through arbitration or waive my ability to participate in a class action.

Signed,

[my signature]

[my full name again]

Stack Exchange profile URL: https://stackexchange.com/users/2477436/gparyani

I mailed it to:

Stack Overflow
Attn: Legal Department
110 William Street, Floor 28
New York, NY 10038
United States of America

Answer 3

Q - How can we opt out from the arbitration clause of the new terms of service?

A - You don't have to, if you never agreed to anything, in the first place...

Just to be on the safe side (and show pro-active rejection), I would recommend sending and keeping proof of a certified mail to the published address of the company (in this case SE). If the letter is returned, you have a legal defense of having attempted to contact the company in "good faith" and the company not responding to their published address places "bad faith" on their own head.

First let me quantify my legal expertise. I am a USA Washington State paralegal - not a Lawyer, and as any lawyer will tell you, "my thoughts whether written or oral are an opinion until tested by a court of law".

For a contract to be binding it must at a minimum include:

1. Date (valid period)
2. Performance (what each party must do)
3. Value (each party must give something of value)
4. Meeting of the minds (clear understanding of obligation)
5. Signature (commitment)

Now that the disclaimer is over, a principal of International and USA courts is there is no contractual obligation until there is a "meeting of the minds".

The LEGAL definition of "meeting of the minds" is both parties understand AND AGREE before obligating to the terms of a contract, what is expected to satisfy (called "performance") the contract and what should be done if a breach of the contract occurs. Recently, USA companies have been using (abusing) the "opt out" clause to buffalo the uninformed into thinking they are obligated to something they never agreed to :(

It is my opinion that "opt out" does not meet the contractual "meeting of the minds" and therefor is unenforceable, both in the USA and Internationally. Of course this is contingent on your war chest to defend yourself against a multi-million dollar legal adversary!

As an example, a ULA attempts to contractually bind a purchaser before they have read (opened a software package) prior to purchase. A ULA is a "Unlimited License Agreement" and according to the seller is a time-based contract for unlimited use. To my knowledge, no ULA seller (company) has ever successfully sued a purchaser for a undisclosed pre-purchase ULA violation.

Let me use an example; I take a document to a judge that says I own everything you had because you did not not "opt out" of an email I sent you. The judge will laugh me out of the court room, then kick me in the south end onto the sidewalk because we never agreed to anything in the first place!

In other words, an "opt out" provision in this context is a legal bluff and given enough money and time can be successfully defended against. This appears to be yet another SE disingenuous attempt (along with many other USA companies) to defend themselves against reasonable litigation after the Facebook expos'e.

As an aside, a general legal pretext is; "...what ever communication method was used to contact you is also valid for your response...". If THEY made legal notification by email, it is reasonable for YOU to respond via the same means - in layman's terms, "...what is good for the Goose, is good for the Gander".

NOTE: The USA holds itself to the precedent set by other International courts. In other words, if there is no precedence within the United States regarding the legality of a case, precedence already set in another country will be binding.

ALSO: United States Law says, except for rare circumstances, the Law where the individual resides, or where the violation occurred has precedence. So, the law of the land where the residence is living (for example, the USA "State"), or the country where the violation occurred will prevail.

Answer 4

As per the update to the new ToS we can opt out in email, along with possible future channels of opt-out. Quoting Tim:

Send an e-mail to [email protected] with the subject of 'opt out of arbitration' and a link to your profile in the body. That's it, we'll handle everything from there.

We're looking at something possibly more robust, but the ability to do it via email should hopefully address one of the larger concerns. As e-mail is the most basic and intuitive method, it'll always remain a valid method to opt-out, even if something new is introduced.