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DISCLAIMER: the arguments described in this topic have already been referenced in multiple posts, yet no official comment on the issue was made that I'm aware of. This post is being made to raise awareness of the problem and to prompt a direct reply from the company.

Also notice that while this is somehow related to the forthcoming implementation of GDPR, the following arguments can be extended to any conflicting local legislature that makes the arbitration clause invalid.


As most readers will probably know by now, the recent TOS update introduced an arbitration clause, which wasn't exactly well received. Multiple users pointed out problems in the original implementation, with most of them being concerned about the opt-out process (30 days, originally requiring users to send in a physical mail).

I won't go over the same topic again, users not yet up-to-date should refer to the above links to get informed. What I am interested in is another somehow serious issue I see that doesn't seem to have yet been addressed or even acknowledged.

Multiple users have noted that the arbitration clause in its current state won't probably hold under many foreign laws. Most posts I found were referencing Europe, but I can only assume other countries may exist that are in the same situation.

As a reference, here are some interesting posts:

The arbitration clause won't hold for any visitors from Europe.

http://www.privacy-regulation.eu/en/article-77-right-to-lodge-a-complaint-with-a-supervisory-authority-GDPR.htm

(quoted from: https://meta.stackexchange.com/a/309845/274498)

Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the right to an independent judge, as established in ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves.

(quoted from: https://law.stackexchange.com/a/28183)

I could post some more examples if anyone is interested, but I think this two should already make the point.

So, while the problem has been referenced multiple times, I am not aware of any indication that the company has acknowledged the issue or has made any relevant statement on the problem.

I am therefore writing this post in the hope of getting an official answer. I am not a lawyer and I can't really estimate how accurate the claims that are being made are - but all the sources, with special mention of the question on Law.SE have been pointing in the same direction, so I am inclined to trust them for now.
Considering that StackExchange has users from almost every corner of the world, it is pretty weird to think that this same issue hasn't come up in any internal discussion.

Again, while I would prefer an answer that fully analyzes the problem, I would be fine even with a simple acknowledgment "we are working to sort this out".

Just please remember that the 30 days countdown is still clicking, the moon is still falling and the four giants are nowhere to be seen, so I fear that this is pretty urgent and can't be handled in the usual 6-8 time units.

  • My guess is that they're waiting on their lawyers and data protection officer to weigh in on that. You can't reasonably expect agents of the company to make statements like this in the open where they could be used against them without first consulting the people whose job it is to know about these things intricately. – Magisch May 15 '18 at 11:51
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    @user5389107 I know, but I would have expected these checks to be made before announcing the new ToS and not after, when everyone is already confused enough by the other problems like opting out modalities and such. Especially because of the 30 days window, – SPArchaeologist May 15 '18 at 12:14
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    @SPArchaeologist I can only speculate here, but my guess is they didn't anticipate pushback regarding this and have tried to make amends with the community after they did, but legalese takes time (more time then they have right now) – Magisch May 15 '18 at 12:16
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    In other ToS where I've seen forced arbitration clauses, they were typically restricted explicitly to users residing in the US. Not sure why SE didn't just add the same language in their ToS. – Mad Scientist May 15 '18 at 12:21
  • @user5389107 I am somehow fine if that is the case (even if I am somehow confused on what to think about it...) and that is why I said "I would be fine even with a simple acknowledgment "we are working to sort this out"." – SPArchaeologist May 15 '18 at 12:31
  • @SPArchaeologist I think you need to clarify in big friendly pink letters that this is not about GDPR but the arbitration clause for europeans. The answers seem confused. – Tschallacka May 18 '18 at 12:32
  • @SPArchaeologist Suggest retitle to "Hey! Listen!! Can we get an official statement about how the arbitration clause will be managed for foreign countries like European ones?" – SeldomNeedy May 23 '18 at 18:07
  • "with most of them being concerned about the opt-out process (30 days, originally requiring users to send in a physical mail)" -- Hadn't heard about this one. :-\ – Daniel May 24 '18 at 21:25
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We don't really need to acknowledge it as an issue if it isn't an issue for us. I can't think of a better way to say that because folks really feel like it should be an issue for us. And I know that's because they care and want us to succeed. And we love you, too!

I don't want to be that person that stands in front of a group of people and says lots of words that .. when you walk away .. don't really mean anything or answer any questions directly. I think we're all sick of seeing that kind of crud on the news (no offense to esteemed and highly regarded acronyms intended).

At the same time, it is very very difficult for me to speak to this without advising you. I will say three things, and these are the only three things I can say about it, and I hope you can all appreciate that:

  • Opting out doesn't take away any of your rights, you can still seek arbitration if you wish. Opting out just doesn't force you to seek arbitration if an issue escalates beyond private talks with us over a matter. We recommend you opt-out if you have any concerns about arbitration as doing so will not limit your future options. We make an exception and advise this because we put that clause in there specifically to address woes.

  • If you have concerns about the validity of something where you live, you should speak to a lawyer about it. I am totally down with fake lawyering with you about software licenses in an abstract sense, or pretty much anything else, but I don't take the place of a real lawyer if you have real concerns.

  • I can't say if concerns surrounding parts of the ToS being applicable in certain areas are a cause for concern on our part. We reserve the right to update the document, and as I mentioned in the GDPR update, we anticipate some excitement in the world legal climate over the next year or so.

But please don't take that to mean that we're actively looking for ways to shoot lasers out of our eyes with more legalese; we're content with what we've got and we hope the coming years will mean minimal impact to our policies as stuff gets litigated and precedence is set.

We have lawyers, REAL ones, even. We'll be fine, and we'll continue to do our best to let our humanity shine through this muddy legal swamp that we're swimming through.

Sometimes, strategy means just do the minimum needed to avert the fates of others that got dunked in the murky waters and got eaten or all muddy, while keeping your eyes open to see if anything new with big jaws or tentacles lurks around.

And that's really all I can say; I hope it's enough.

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    .... will have to "digest" this I guess. I can see your point there, yet there is a part of me that thinks that if at any point a company realize that a part its ToS isn't valid for a portion of its userbase said company is responsible to let them know. So that they can't be misguided into thinking that those clause are valid for them too. I know, this may seem egoistic and I also realize your points but I can't shake that feeling off me. Guess I will have to reflect on this a little longer. Anyway, thanks for your answer Tim. – SPArchaeologist May 18 '18 at 14:45
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    @SPArchaeologist It seems to me that folks in the EU are essentially automatically opted out since EU legislation prevents binding users to arbitration. Users in EU might have additional privileges on top of those provided by the ToS, that's all. But it's potentially dangerous for the company to start making clear legal statements without very thorough planning and there are a whole lot of different laws out there (outside US and EU), so I understand full well why Tim doesn't want to say much. I'm neither a lawyer or SE staff, so my guesses won't (shouldn't!) be construed as legal advice. – Joonas Ilmavirta May 18 '18 at 22:54
  • @JoonasIlmavirta and in a way that is basically part of my "concerns": I would expect this to have been planned well before now... and I would also have expected that some "public relations team member?" would have stepped in some way so that Tim hadn't to get himself in this thorny situation as "official ToS announcer" – SPArchaeologist May 21 '18 at 7:41
  • @SPArchaeologist: "yet there is a part of me that thinks that if at any point a company realize that a part its ToS isn't valid for a portion of its userbase said company is responsible to let them know"... how often do you see this happen? Most companies just add a clause along the lines of "to the extent permitted by law" and it's basically the same thing here. The exceptions I can think of are healthcare & financial companies which send you snail mail, which I expect even then is only due to regulation. Not free Q/A sites. – Mehrdad May 23 '18 at 0:47
  • @Mehrdad the fact that no one actually does this won't really influence my belief that that would be the "right" thing to do. But yep, I get your point and that is why I also said I get Tim's position - it is not like SE is a no-profit organization. – SPArchaeologist May 23 '18 at 7:43
  • "Not free Q/A sites." --- Nothing's free. – Daniel May 24 '18 at 21:28
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As implied by Tim in the comment section on another related question, a new post has now been made that once again goes in detail about how the new ToS will be implemented.

Here is the link to said post.

Since the new ToS is expected to be publicly available by 25, May this means that until then any discussion about the new version of the arbitration clause is sadly just speculation based on the old "retired" one.

While I suspect that no form of arbitration clause can be rewritten so that it would hold up under most foreign laws, it is also plausible to think that the new ToS will dictate the clause only for US - based users.

Therefore, I have to conclude that we will have to wait for the new version of ToS before asking further clarification.

This answer is meant to be a placeholder until then. As soon as new info comes it this post and the answer will be updated to reflect the new issues or closed if the original concerns are no longer applicable.

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    WHY does everyone say GDPR... it's about the arbitration clause. It's unrelated to GDPR. It just comes bundled with it, but arbitration handling in europe is a complete loose set of info to GDPR. read more on meta.stackexchange.com/a/309845/274498 – Tschallacka May 18 '18 at 12:03
  • you are actually right. Editing. – SPArchaeologist May 18 '18 at 13:20
  • @Tschallacka that said, I am not truly convinced that this answer is wrong. My point is that the staff/company has officially posted a new "question" that states that the new ToS implementation has been delayed to give them more time to sort things out. They also referenced the GDPR directly in their post so the delay is indeed related to the GDPR in a way. What this answer is meant to say, and I will edit it to make that more clear, is that as now there is no arbitration clause at all to discuss in the first place, since the new ToS has officially been delayed till the end of the month. – SPArchaeologist May 18 '18 at 13:33

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