Discord Applying Forced Arbitration - opt-out before it is too late!
bsky.app
bsky.app
At least Discord specified AAA arbitration. They're considered legitimate. There are arbitration services that are much worse. One is a front for a debt collection company.
[1] https://apps.adr.org/ClauseRegistryUI/faces/org/adr/extapps/...
Blog post from 2018: https://discord.com/safety/terms-of-service-feedback-and-cha... Archived version of ToS from may 2020: https://discord.com/terms/terms-of-service-may-2020
On the plus side, if you didn’t opt out before, you get a new opportunity to opt out, which according to the new terms will remove all disputes that have not yet been filed from the scope of previous arbitration agreements with Discord.
Since the clause only applies if you are a US resident, it’s very unclear how that opt-out deadline applies to existing Discord accounts for people who relocate into the US after the deadline. The conservative approach is to opt out wherever in the world you live, in case you later move to the US.
Disclosure: I work on it.
Such agreements should not be enforceable in the first place.
At least no constitutional amendment is required to fix this. These US Supreme Court rulings have been based on the Federal Arbitration Act, a regular statue, not on the Constitution (except as the source of Congress’s authority to override state law on this issue).
Whether or not you believe forced arbitration is bad, it seems like there have to be higher value causes to get up in arms about right now.
Yes indeed, but resistance against unfairness is not like a coin purse; it is like a muscle. When exercised, it seems like it increases its capacity.
The upside to having the reflex is that you stand up against unfairness more often. The downside is that it becomes a simple response to a stimulus rather than a conscious choice, which means you end up constantly caught up in the cause du jour without ever stopping to think about whether this particular case warrants your limited time or even whether it's actually a case of true unfairness.
Still in development, though is promising.
Supported by Democrats, killed by Republicans. Elections matter.
Let’s forget employment for a sec and just look at a product’s terms. Why can’t you just not use the product?
“It’s popular” is hardly an excuse for something new if you’re picking the platform.
If it’s an existing community and you feel forced to join a closed system with too many rules for your tastes, skip it. The community will suffer and hopefully they change to something you’ll like. But if not, screw em.
Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems.
In my personal experience, it’s worked out fine.
> Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems.
Not reading the thing you’re agreeing to is not an excuse. Otherwise it’d be an out for any contract.
And again, consumers can vote with their feet by only agreeing to terms that are understandable.
In the UK and other European countries, particularly regarding consumer goods or other kinds of contracts with an inherent asymmetry of negotiating power, there are lots of things you can’t agree in contracts, such as disclaiming general fitness for purpose and safety.
Deciding that you can’t agree away your rights to redress through the judicial system seems like a reasonable extension of these kinds of rules.
Okay, but you do realize other people have a different experience of the world, right?
Discord is super-easy to avoid right up until it turns out the only communities for something are on Discord. Or your teacher assigns you work that requires using it. Or your work requires you to use it. Or...
And the thing is, 99% of us will never run into any of those situations! It's easy not to be affected personally, right up until you are
> Not reading the thing you’re agreeing to is not an excuse.
Okay, but I did read the entire TOS at the time - now I'm required to also read every update and respond within a 30 day period. Which, again, easy not to be personally affected right up until you're on vacation in a region with bad internet, or just super-busy with work and you miss that one email
> And again, consumers can vote with their feet by only agreeing to terms that are understandable.
We ban all sorts of contracts - you can't sell yourself into slavery, you can't agree to commit a crime. So what's wrong with voting with our actual vote, instead?
Especially since I'm interested in protecting not just myself, but other people who might not realize how much this potentially disadvantages them.
If chat required interoperability like telephones do, this would not be an issue. The government has failed at making proper regulations
This might have been viable in 1795, but it feels ill suited to a world where we have billion dollar firms, legal staff on retainer, and contracts that have been revised like a codebase... versus consumers with no formal legal training.
Even if there wasn't an inherent inequality of field, the high cost of litigation also encourages a tendency to ask for the unreasonable. The people presenting the contract know there's probably not enough money in it for anyone but the wealthy and begrudged to try to challenge the contract, so there's little risk to asking for more permissions, less liability, and tighter binding on the consumer. In the worst case, the cost serves as an effective bludgeon for abusive behaviour: they'll go along because they can't afford to get a favourable judgement.
I dream of a world where there's no surprises in contracts-- basically there'd be a book of standard contracts filled out in a Mad Lib fashion. This would collapse a lot of the possibilities courts would have to deal with, resulting in a faster, predictable, almost deterministic legal system. If someone actually wanted to bring out a new clause, it would have to go through a highly-visible, paperwork-intensive vetting and discussion process. The Discords of the world then have to face very public scrutiny of their actions and motives: what makes your needs so special that they can't be dealt with using the standard contract for data services?
A lot of SCOTUS opinions in general seem pretty clear that they wish Congress would act and spell out what they want to happen, because that sure as hell is better than running to the courts to decide everything.
But I am going through forced arbitration right now in a personal lawsuit, and part of it is bleeding to a third party that does not arbitrate, which means real court. By all accounts I have been assured by my lawyer we are in a better position pursuing arbitration over litigation. Both seem to be quite expensive options, though fortunately there is a clause for legal fees to the prevailing side (and in my case evidence in my favor is airtight).
Any enlightenment would be wonderful.
One of the biggest consumer protections that a forced arbitration clause can kill is a class action lawsuit. If a corporation harms each consumer for $.30, there’s no real way to bring an individualized case over that. A class action is a viable option to hold the corporation to account.
Generally yes. One of the whole points of a class action is that they can address harms that are de minimis to an individual, but pretty bad for a society as a whole when repeated millions of times. So, generally the harm to you was small (probably small enough that you didn’t notice, or wouldn’t have bothered fighting the corporation on your own over it), so the compensation to you is also generally small.
As a class member, you can opt out of the class, and sue the company individually, if you think you’ve been significantly damaged more tban a typical member of the class. There’s usually a proactive step you have to opt out at some point.
The claim businesses make is that it is more efficient than court for people, but if that were actually the case then they would not need to constantly try to add forced arbitration.
Forced arbitration is only a win for the business, and the entire intent is to make it so that the amount of harm they have to do before it is worth anyone suing them has to be measured in thousands of dollars for any person. The only way corporations are held to account for the majority of their crime is through increasingly impossible class action lawsuits.
Court is an essential part of government function that allows two parties to be judged fairly in a dispute. It's the great equalizer- at least in theory.
While the act of going to court with a lawyer is expensive, court itself is not expensive.
Moreover, court cases can be used as precedent for other court cases. Evidence found in one case can be used in another.
Arbitration works very differently.
Firstly, an arbitration clause may allow for the party with more "clout" to specify a less fair arbitration body. While the matter of arbitration fairness is complex, it's certainly not wild speculation that some bodies side more with some kinds of entities than others.
Secondly, arbitration requires up front payment. This can actually be a good thing for consumers in that it forces both parties to pay, but it costs a lot of money- thousands of dollars. Most people aren't going to spend that kind of money.
Thirdly, arbitration is not court, and findings in arbitration can't be used either in court, or in future arbitration cases. This provides an advantage to the big company, since they know what they might face, but each time a consumer goes after them, they're starting essentially from scratch!
Lastly, it precludes collective action. Each Discord user who feels wronged may not have the resources to arbitrate on their own, which is why the courts allow for class action lawsuits. Forced arbitration takes that option away.
When is the USA going to realise that allowing companies to behave like this shouldn’t be allowed?
When this country stops fighting amongst itself over {race | skin color | wealth status | consumerism | brand loyalty | political affiliation} and aim our collective anger at companies, lobbyists, oil and gas, billionaires, and 0.01%. AKA the true people that end up writing our laws.
> and aim our collective anger at companies, lobbyists, oil and gas, billionaires
A deeply confused argument.
What the commenter meant is almost certainly "stop infighting in the lower and middle classes".
If Discord did something actually bad enough to warrant me suing them, I'm not going to let this deter me. I highly doubt I will ever need to do that. They're not going to make me lose my job or my limbs or worse.
This is just a company protecting itself from theoretical maximal downside, which any company will seek to do.
if it wasn't for people doing their small thing, maybe the EU wouldn't require Apple "opening up"
It is way too early to call that this will result in a net benefit for software freedom.
We already have a platform—Android—that provides the freedoms that the EU is mandating Apple now provide. What we are getting is a second platform that now cannot provide an alternative type of service to consumers. That honestly feels like a net loss in consumer choice, not progress.
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TLDR. Send an email before 15th May to: arbitration-opt-out@discord.com "I am confirming that as of the date of this email, I am choosing to opt out of binding arbitration to settle disputes with Discord". Make sure to send it from the email you use for your Discord account.
Of course the reason everyone suspects is because a website that sells Discord chat logs became very well known. Basically you tell them a username and they scrape Discord servers, and if you tell them a user name they sell you everything they know about that person. This might have been a wakeup call for Discord regarding their potential legal liability.
Aside from defamation, which I can't really imagine actually occurring here, are any of those actually crimes? They just sound like dick moves.
In discords case, they are likely doing this because they are expecting a lawsuit in regards to the SpyPet scraping.
For me, I don't want to be forced to pay for my day in court (and the years of paperwork to get there).
> To protect our users outside the United States, we’ve decided to modify this clause so that it only affects users in the United States. If you are outside of the United States, this clause does not apply to you
https://discord.com/safety/terms-of-service-feedback-and-cha...
"We're going to protect our users outside the United States from a thing we've freely chosen to do to our users in the United States."
> IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS.
From https://europa.eu/youreurope/citizens/consumers/unfair-treat...
> Here are some situations where contract terms may be judged unfair under EU rules:
> ...
> 17. Limited rights to legal action
> Terms which restrict how and where consumers can take legal action and obliging them to provide proof which is the responsibility of the other party to the contract.
Discord is going to have a horror show if they try to attempt anything similar. It is -trivial- on Disboard or other Discord search sites to find Discord servers with explicit sexual themes aimed at and targetted at minors, and even worse than that, ones with explicit sexual themes that have age ranges that include minors and adults (like "Community of 14-28 year olds...").
When more people start pulling at that thread, it's going to unravel really quickly.
Discord has been doing -some- housecleaning, but only on the most egregious "sexual 'violence'" offenders.
get-out before it's too late...